INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT is made and executed as of
December 31, 1998 by and among the SECURED AGREEMENT OBLIGEES (as hereinafter
defined), the DK LENDERS (as hereinafter defined), the ANGLO AMERICAN LENDERS
(as hereinafter defined), and X.X. XXXXXXXX & CO., LLC, a New York limited
liability company, as Collateral Agent on behalf of the Secured Agreement
Obligees, the DK Lenders and the Anglo American Lenders (in such capacity, the
"COLLATERAL AGENT").
The foregoing capitalized terms and the capitalized terms in
the following Recitals are defined in SECTION 1 hereof.
RECITALS
A. The DK Lenders and the Collateral Agent are parties
to the DK Loan Documents, and, pursuant thereto, the DK Loan Obligations are
secured by the following property and interests in property of the Company and
the Subsidiaries, except the Excluded Property, whether now owned or existing or
hereafter acquired or arising, or in which the Company and such Subsidiaries now
or hereafter have any rights, and wheresoever located, and all proceeds thereof:
i. the Subsidiary Stock;
ii. the Homesite Contracts Receivable;
iii. the Commercial Receivables;
iv. the Real Property; and
v. the Personal Property.
At such times as any Excluded Property is freed of contractual or legal
restrictions against becoming subject to a Lien to secure the DK Loan
Obligations or upon the distribution of any Trust Property to the Company or a
Subsidiary, such property shall, automatically, become subject to the Liens
securing the DK Loan Obligations.
B. The Secured Agreement Obligees and the Collateral
Agent are parties to the Secured Agreement Documents, and, pursuant thereto, the
Secured Agreement Obligations are secured by the following property and
interests in property of the Company and the Subsidiaries, except the Excluded
Property, whether now owned or existing or hereafter acquired or arising, or in
which the Company and such
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Subsidiaries now or hereafter have any rights, and wheresoever located, and all
proceeds thereof:
i. the Subsidiary Stock;
ii. the Homesite Contracts Receivable;
iii. the Commercial Receivables;
iv. the Real Property; and
v. the Personal Property.
At such times as any Excluded Property is freed of contractual or legal
restrictions against becoming subject to a Lien to secure the Secured Agreement
Obligations or upon the distribution of any Trust Property to the Company or a
Subsidiary, such property shall, automatically, become subject to the Liens
securing the Secured Agreement Obligations.
C. The Anglo American Lenders and the Collateral Agent
are parties to the Anglo American Loan Documents, and, pursuant thereto, the
Anglo American Loan Obligations are secured by the following property and
interests in property of the Company and the Subsidiaries, except the Excluded
Property, whether now owned or existing or hereafter acquired or arising, or in
which the Company and such Subsidiaries now or hereafter have any rights, and
wheresoever located, and all proceeds thereof:
i. the Subsidiary Stock;
ii. the Homesite Contracts Receivable;
iii. the Commercial Receivables;
iv. the Real Property; and
v. the Personal Property.
At such times as any Excluded Property is freed of contractual or legal
restrictions against becoming subject to a Lien to secure the Anglo American
Loan Obligations or upon the distribution of any Trust Property to the Company
or a Subsidiary, such property shall, automatically, become subject to the Liens
securing the Anglo American Loan Obligations.
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D. From and after the issuance of the Preferred Stock,
as defined in the Investment Agreement, the collateral securing the obligations
of the Company and Subsidiaries in respect of the Secured Agreement Documents
shall secure certain of the obligations of the Company and the Subsidiaries to
the holder of the Preferred Stock under the Investment Instruments, including
any obligations to redeem or repurchase such Preferred Stock.
E. The DK Loan Obligations, the Anglo American Loan
Obligations, and the Secured Agreement Obligations are guaranteed by the
Subsidiaries pursuant to the Guarantees (PROVIDED that such Subsidiaries may in
fact be co-makers or co-obligors with respect to certain of the Obligations,
which distinction is not intended to affect the priorities, subordinations, or
turnover provisions contained herein).
F. The relative priorities of the Liens securing the DK
Loan Obligations, the Anglo American Loan Obligations, and the Secured Agreement
Obligations, as among the parties hereto, are intended to be established
pursuant to this Agreement.
G. Except as otherwise expressly stated below in this
paragraph, this Agreement amends and restates in its entirety that certain
Intercreditor Agreement dated as of June 23, 1998, among the Company, Foothill
Capital Corporation and The Bank of New York (as the predecessor SP Sub
Collateral Agent) (the "Old Intercreditor Agreement"), except that the
provisions of the Old Intercreditor Agreement with respect to the transition of
the role of the SP Sub Collateral Agent from The Bank of New York to X.X.
Xxxxxxxx & Co., LLC (including SECTION 3.11 of the Old Intercreditor Agreement)
shall remain in full force and effect and shall not be superseded hereby, and
except that any provisions of the Old Intercreditor Agreement that by their
terms survive termination thereof (such as any indemnities in favor of the
Collateral Agent provided for in SECTION 3.6 of the Old Intercreditor Agreement)
shall remain in full force and effect and shall not be superseded hereby.
AGREEMENT
In consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
(a) DEFINED TERMS. As used in this Agreement,
the following terms shall have the following meanings:
"AGENCY FUNDS" has the meaning set forth in SECTION 3.1
hereof.
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"AGREEMENT" means this Intercreditor Agreement, as amended,
supplemented or otherwise modified from time to time.
"ANGLO AMERICAN EVENT OF DEFAULT" means a defined "Event of
Default" under the Anglo American Loan Documents.
"ANGLO AMERICAN FINANCIAL" means Anglo-American Financial, a
New York limited partnership.
"ANGLO AMERICAN LENDER GROUP" means the Anglo American
Lenders, and the Anglo American Representative and the Collateral Agent when and
to the extent acting on behalf thereof.
"ANGLO AMERICAN LENDERS" means the lenders party to the Anglo
American Loan Documents and their respective successors and assigns.
"ANGLO AMERICAN LOAN DOCUMENTS" means, collectively, (i) the
Term Loan Agreement, and (ii) the "Loan Documents" as defined in the Term Loan
Agreement, each of the foregoing as from time to time amended, supplemented or
otherwise modified in accordance with the terms hereof and thereof.
"ANGLO AMERICAN LOAN OBLIGATIONS" means (i) the Term Loans
outstanding under the Anglo American Loan Documents; (ii) all interest
(including default interest and all interest accruing after the commencement of
an Insolvency or Receivership Proceeding), fees, prepayment premiums and late
payment fees now or hereafter payable with respect thereto; (iii) all existing
and future guaranty obligations relating to the foregoing; and (iv) all other
fees (including, without limitation, attorneys' and paralegals' fees and
expenses) and other amounts now or hereafter payable to the Anglo American
Lenders, or any of them, or their agents under or in respect of the Anglo
American Loan Documents.
"ANGLO AMERICAN REPRESENTATIVE" means Anglo American
Financial, whom each of the Anglo American Lenders hereby appoints as its
official representative for purposes of (a) the receipt for and on behalf of the
Anglo American Lenders hereunder of any notice hereunder from the Secured
Agreement Obligee Representative or the DK Representative, and (b) the giving to
the Secured Agreement Obligee Representative or the DK Representative of any
notice by and on behalf of the Anglo American Lenders. Unless the Secured
Agreement Obligee Representative and the DK Representative shall have been
notified otherwise in accordance with SECTION 4.1, the Secured Agreement Obligee
Representative and the DK Representative may presume that Anglo American
Financial at all times continues to be the Anglo American Representative.
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"BANK ACCOUNTS" means any and all deposit accounts, money
market accounts and any other deposits and investments of the Company or any
Subsidiary held in any bank or other financial institution, any brokerage firm
or any other Person and all money, instruments, securities, documents and other
investments held pursuant thereto, whether now existing or owned or hereafter
created or acquired (exclusive of all but the residual, remainder or beneficial
interests of the Company and its Subsidiaries in the Reserve Accounts, the
Claims Disbursement Account and all other escrow, restricted, custodial and
fiduciary accounts the pledge of which by the Company is excused by the terms of
the DK Loan Documents, the Anglo American Loan Documents, and the Secured
Agreement Documents).
"BLOCKAGE PERIOD" means a Dividend Blockage Period, a
Non-Payment Blockage Period, a Payment Blockage Period, or any of them. If a
Dividend Blockage Period or a Payment Blockage Period commences during a
Non-Payment Blockage Period, or VICE-VERSA , then the combined period is a
"Blockage Period."
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which either is a legal holiday under the laws of the State of New York
or is a day on which banking institutions located in the State of New York are
authorized or required by law or other governmental action to close.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants or options to purchase any of the
foregoing.
"CASH COLLATERAL ACCOUNT COLLATERAL" means the collateral held
in any Cash Collateral Account.
"CASH COLLATERAL ACCOUNTS" means any and all accounts that the
Collateral Agent may from time to time require to be established and maintained
with financial institutions reasonably satisfactory to it and pledged to the
Collateral Agent (for the benefit of the Secured Parties) pursuant to cash
collateral account agreements in form and substance reasonably satisfactory to
it.
"CASH EQUIVALENTS" means (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than 90 days from the date
of acquisition, (ii) time deposits and certificates of deposit having maturities
of not more than 90 days from the date of acquisition issued by any domestic
commercial bank, or non-domestic commercial bank provided that such non-domestic
commercial bank shall have offices in the United States, having capital and
surplus in excess of $500,000,000.00, (iii) repurchase obligations with a term
of not more than 30 days for
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underlying securities of the types described in clauses (i) and (ii) entered
into with any bank meeting the qualifications specified in clause (ii) above,
and (iv) commercial paper rated at least A-1 or the equivalent thereof by
Standard & Poor's Corporation or P-1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. or which is issued by any domestic commercial bank
having capital and surplus in excess of $500,000,000.00 (or any holding company
thereof) and, in any such case, maturing within 90 days after the date of
acquisition.
"CLAIMS DISBURSEMENT ACCOUNT" means the segregated account
established for purposes of holding funds borrowed to pay Administrative Claims,
Priority Claims and Convenience Class Claims pursuant to Sections 3.2.4 and
8.1.1 of the Reorganization Plan.
"COLLATERAL" means collectively, the property and interests in
property securing the DK Loan Obligations, the Anglo American Loan Obligations,
and the Secured Agreement Obligations pursuant to the Secured Debt Documents.
"COLLATERAL AGENT" means X.X. Xxxxxxxx & Co., LLC, or its
successors or assigns, as collateral agent for the DK Lenders, pursuant to the
DK Loan Documents, X.X. Xxxxxxxx & Co., LLC, or its successors or assigns, as
collateral agent for the Anglo American Lenders, pursuant to the Anglo American
Loan Documents, and X.X. Xxxxxxxx & Co., LLC, or its successors or assigns, as
collateral agent for the Secured Agreement Obligees, pursuant to the Secured
Agreement.
"COLLATERAL AND SUBSIDIARY CLAIMS" has the meaning set forth
in Section 2.17 hereof.
"COMBINED PLAN" means a plan of reorganization or the
equivalent in a Combined Proceeding that provides for treatment of claims
against (a) one or more AG Entities, and (b) one or more SP Sub Entities.
"COMBINED PROCEEDING" means, collectively, Insolvency or
Receivership Proceedings involving, collectively, (a) one or more AG Entities,
and (b) one or more SP Sub Entities, which proceedings are combined or
consolidated for the purposes of proposing, confirming, or carrying out a plan
of reorganization or the equivalent, or otherwise administer or distribute,
pursuant to one plan or the equivalent, Collateral securing the DK Loan
Obligations, the Anglo American Loan Obligations and the Secured Agreement
Obligations, whether or not such proceedings are formally "substantively
consolidated" for all purposes.
"COMMERCIAL REAL ESTATE" means all Real Property of the
Company and its Subsidiaries (including condominium and cooperative units) other
than Real Property reserved for sale as single residential homes or lots.
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"COMMERCIAL RECEIVABLES" means all promissory notes and
mortgages and deeds of trust payable to, or held by, the Company or any
Subsidiary, and all other documents, instruments and agreements executed in
connection therewith, whether currently existing or hereafter created or
acquired, arising from the sale of single-family homesites or arising from the
sale of other Real Property and all cash and non-cash proceeds thereof.
"COMPANY" means Atlantic Gulf Communities Corporation, a
Delaware corporation.
"CONDEMNATION AWARDS" means any and all proceeds (including,
without limitation, proceeds in the form of promissory notes or other agreements
for the payment of proceeds) from (i) the taking by eminent domain, condemnation
or otherwise, or acquisition pursuant to contract, of any property of Company or
any Subsidiary by the United States of America, the State of Florida or any
political subdivision thereof, or any agency, department, bureau, board,
commission or instrumentality of any of them, including without limitation any
awards and/or other compensation awarded to or for the benefit of, or received
by or on behalf of, Company or any of its Subsidiaries, whether as a result of
litigation, arbitration, settlement or otherwise, or (ii) any sale by the
Company or any of its Subsidiaries of a water and utility system to a Person,
whether now owned or hereafter created or acquired.
"DESIGNATED JUNIOR INDEBTEDNESS" means: (a) prior to the time,
if any, that all DK Loan Obligations have been paid in full, the Secured
Agreement Obligations owing by the Obligors and the Anglo American Loan
Obligations owing by the Obligors, and each of them; and (b) at and after the
time, if any, that all DK Loan Obligations have been paid in full, the Secured
Agreement Obligations owing by the Obligors.
"DESIGNATED SENIOR INDEBTEDNESS" means: (a) prior to the time,
if any, that all DK Loan Obligations have been paid in full, the DK Loan
Obligations owing by the Obligors; and (b) at and after the time, if any, that
all DK Loan Obligations have been paid in full, the Anglo American Loan
Obligations owing by the Obligors.
"DETERMINATION EVENT" means the occurrence of any of the
following:
(i) acceleration of any of the Obligations; or
(ii) enforcement of a Lien by the Collateral
Agent; or
(iii) the commencement of an Insolvency or
Receivership Proceeding.
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"DIVIDEND" has the meaning set forth in Section 4.14(a)
hereof.
"DIVIDEND BLOCKAGE NOTICE" means a written notice from the
Representative of the Senior Creditor Group, stating in substance that an Event
of Default has occurred and is continuing under the Secured Debt Documents with
respect to the Designated Senior Indebtedness, and that the Senior Creditor
Group is exercising its right to block the payment of dividends that would
otherwise be permissible pursuant to this Agreement, including, without
limitation, the redemption and/or repurchase of the Preferred Stock and all
interest, prepayment premiums and late fees now or hereafter payable with
respect thereto. The foregoing notwithstanding, the giving of a Dividend
Blockage Notice shall be deemed to be the giving of a Non-Payment Default
Subordination Notice to the Anglo American Representative and the Default
Secured Agreement Obligee Representative for all purposes of this Agreement, and
the giving by the Representative of the Senior Creditor Group of a Payment
Default Subordination Notice or a Non-Payment Default Subordination Notice to
the Anglo American Representative and the Secured Agreement Obligee
Representative shall be deemed to be the giving of a Dividend Blockage Notice
for all purposes of this Agreement.
"DIVIDEND BLOCKAGE PERIOD" means any period commencing on any
date as of which a Dividend Blockage Notice is deemed to have been duly given,
in accordance with the notice provisions of SECTION 4.1 of this Agreement, to
the Secured Agreement Obligee Representative, and continuing until the earliest
of (a) the date that no Events of Default exist under the Secured Debt Documents
with respect to the Designated Senior Indebtedness, (b) the date that such
Dividend Blockage Notice is withdrawn or rescinded in writing by the
Representative of the Senior Creditor Group, and (c) the date that the
Designated Senior Indebtedness is paid in full.
"DK EVENT OF DEFAULT" means a defined "Event of Default" under
the DK Loan Documents.
"DK LENDER GROUP" means the DK Lenders, and the DK
Representative and the Collateral Agent when and to the extent acting on behalf
thereof.
"DK LENDERS" means the lenders party to the DK Loan Documents
and their respective successors and assigns.
"DK LOAN DOCUMENTS" means, collectively, (i) the Revolving
Loan Agreement, and (ii) the "Loan Documents" as defined in the Revolving Loan
Agreement, each of the foregoing as from time to time amended, supplemented or
otherwise modified in accordance with the terms hereof and thereof.
"DK LOAN LETTER OF CREDIT OBLIGATIONS" means at any time, the
sum of (i) the maximum amount which is, or at any time hereafter may become,
available to be
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drawn under letters of credit (or guarantees in respect of letters of credit)
issued and outstanding under or in connection with the Revolving Loan Agreement,
PLUS (ii) the aggregate amount of all drawings under any such letters of credit
(or guarantees in respect of letters of credit) honored by the issuing banks
thereof but not reimbursed, PLUS (iii) the aggregate amount of any cash
collateral deposited by the DK Lenders in substitution for any such letters of
credit or guarantees in respect thereof.
"DK LOAN OBLIGATIONS" means (i) the Revolving Loans
outstanding under the DK Loan Documents, including, without limitation, any DK
Loan Letter of Credit Obligations; (ii) all interest (including default interest
and all interest accruing after the commencement of an Insolvency or
Receivership Proceeding, whether or not allowed as a claim in an Insolvency or
Receivership Proceeding), letter of credit fees, prepayment premiums and late
payment fees now or hereafter payable with respect thereto; (iii) all existing
and future guaranty obligations relating to the foregoing; and (iv) all other
fees (including, without limitation, attorneys' and paralegals' fees and
expenses) and other amounts now or hereafter payable to the DK Lenders, or any
of them, or their agents under or in respect of the DK Loan Documents.
"DK REPRESENTATIVE" means X.X. Xxxxxxxx & Co., LLC, whom each
of the DK Lenders hereby appoints as its official representative for purposes of
(a) the receipt for and on behalf of the DK Lenders hereunder of any notice
hereunder from the Secured Agreement Obligee Representative or the Anglo
American Representative, and (b) the giving to the Secured Agreement Obligee
Representative or the Anglo American Representative of any notice by and on
behalf of the DK Lenders. Unless the Secured Agreement Obligee Representative
and the Anglo American Representative shall have been notified otherwise in
accordance with SECTION 4.1, the Secured Agreement Obligee Representative and
the Anglo American Representative may presume that X.X. Xxxxxxxx & Co., LLC, or
its successors or assigns, at all times continues to be the DK Representative.
"ENFORCEMENT ACTION" means, with respect to any Secured Party
and any Collateral, but subject nonetheless to the provisions of the immediately
succeeding sentence, such Secured Party's: repossessing, selling, leasing or
otherwise disposing of all or any part of such Collateral, or exercising
notification or collection rights with respect to all or any portion thereof, or
attempting or agreeing to do so; commencing the enforcement with respect to such
Collateral of any of the default remedies under any of such Secured Party's
Secured Debt Documents, the UCC or other applicable laws; appropriating, setting
off, or applying any part or all of such Collateral in the possession of, or
coming into the possession of, such Secured Party or its agent or bailee, to
such Secured Party's Obligations; or commencing or prosecuting any judicial
action to garnish, attach, levy upon, or obtain a statutory or judicial lien
upon all or any portion thereof. In addition, "Enforcement Action" includes: (i)
the making of any demand for payment by the Secured Agreement Obligee Group on
the Company or any
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of its Subsidiaries or the giving of notice to them of the acceleration of any
Obligation, in each case except after 15 days prior written notice of such
proposed demand for payment or notice of acceleration shall have been given by
the Secured Agreement Obligee to the DK Representative and the Anglo American
Representative, (ii) the commencement by or on behalf of the Secured Agreement
Obligee Group of any legal proceeding against the Company or any of its
Subsidiaries to collect any Obligation, (iii) the institution of, or joinder in
the institution of, any Insolvency or Receivership Proceeding by the Secured
Agreement Obligee Group against the Company or any of its Subsidiaries, (iv) the
making of any demand for payment by the Anglo American Lender Group on the
Company or any of its Subsidiaries or the giving of notice to them of the
acceleration of any Obligation, in each case except after 15 days prior written
notice of such proposed demand for payment or notice of acceleration shall have
been given by the Anglo American Representative to the DK Representative (other
than in the case of an acceleration which shall occur automatically pursuant to
the Anglo American Loan Documents, as to which only contemporaneous notice to
the DK Representative shall be required), (v) the commencement by or on behalf
of the Anglo American Lender Group of any legal proceeding against the Company
or any of its Subsidiaries to collect any Obligation, and (vi) the institution
of, or joinder in the institution of, any Insolvency or Receivership Proceeding
by the Anglo American Lender Group against the Company or any of its
Subsidiaries (but shall not preclude the filing of a proof of claim in any such
proceeding). Anything to the contrary in this definition notwithstanding,
"Enforcement Action" shall not include the giving to the Company or any
Subsidiary of the Company of any notice, including, without limitation, a
Repurchase Notice, or the making on the Company or any Subsidiary of the Company
of any demand, including, without limitation, a demand for payment, in each
instance if and to the extent necessary to cause the repurchase obligations of
such Person in respect of the Preferred Stock or other payment obligation of
such Person to the Secured Agreement Obligee Group to mature and become
enforceable (PROVIDED that the Representative of the Senior Creditor Group shall
have received 15 days' prior written notice of the giving of such Repurchase
Notice or of such proposed demand for payment, and PROVIDED that the giving of
any such notice, or the making of any such demand, shall not supersede any
subordination of Liens or claims provided for in this Agreement, and, PROVIDED,
FURTHER, that any obligation provided for in this Agreement to disgorge or turn
over any payment or transfer received in violation of any provision of this
Agreement subordinating any Lien or claim shall continue to be applicable
notwithstanding the giving of any such notice or the making of any such demand).
"EVENT OF DEFAULT" means a Secured Agreement Event of Default,
an Anglo American Event of Default, or a DK Event of Default, as the context
requires.
"EXCLUDED PROPERTY" means (i) the Capital Stock of General
Development Acceptance Corporation and GDV Financial Corporation, (ii) 34% of
the Capital Stock of AG Asia, (iii) all money or property now or hereafter
deposited into a
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Reserve Account pursuant to the Reorganization Plan (exclusive of the residual,
remainder or beneficial interests of the Company and its Subsidiaries therein),
(iv) any portions of payments made on Homesite Contracts Receivable which are,
as a matter of law or pursuant to such Homesite Contracts Receivable, required
to be placed in a restricted account for the payment of utility charges or paid
toward real estate taxes on the lots subject to the respective Homesite
Contracts Receivable giving rise to such payments, and (v) the Trust Property.
"EXCLUDED SUBSIDIARIES" means the Subsidiaries of the Company
listed in Schedule 1 attached hereto.
"EXTRAORDINARY REIMBURSEMENT PAYMENT" means any payment by any
Obligor to any Anglo American Lender or the Anglo American Representative on
account of any fee, reimbursement of costs or expenses, or reimbursement of
amounts payable pursuant to any indemnity, to the extent, in each case, that it
is extraordinary in amount or made other than in the ordinary course of business
of such Obligor; PROVIDED that a scheduled payment of interest or fees with
respect to the Anglo American Loan Obligations shall not be construed to be an
Extraordinary Reimbursement Payment.
"GUARANTEES" means the collective reference to the Guarantees
made by the Subsidiaries of the Company for purposes of guaranteeing the payment
and performance of the DK Loan Obligations, the Anglo American Loan Obligations,
and the Secured Agreement Obligations, respectively, pursuant to the DK Loan
Documents, the Anglo American Loan Documents, and the Secured Agreement
Documents, respectively, as in effect on the date hereof and as hereafter
created, as amended, supplemented or otherwise modified from time to time. If
and to the extent any Subsidiary of the Company is in fact a co-maker or
co-obligor of the Company with respect to any Obligation of the Company, as
opposed to being a guarantor with respect thereto, for all purposes of this
Agreement such Subsidiary of the Company that is a co-maker or co-obligor shall
be treated as if it is a guarantor of the Obligations in question, including,
without limitation, for the purposes of applying any priority, subordination, or
turnover provisions hereof that are applicable with respect to Guarantees,
obligations or payments thereunder, or rights against or obligations of
Subsidiaries of the Company that have guarantied Obligations of the Company,
and, in such context, all references herein to Guarantees shall refer to any
Secured Debt Documents evidencing any Obligation of any such co-maker or
co-obligor.
"HOMESITE CONTRACTS RECEIVABLE" means all contracts for deed,
promissory notes, mortgages, deeds of trust and other agreements, currently
existing or hereafter created or acquired, pursuant to which the Company or any
Subsidiary has the right to receive payment in any form whatsoever for the sale
of single-family homesites (excluding Commercial Receivables), including any and
all accounts, contract rights, chattel paper, general intangibles and unpaid
seller's rights, relating to the foregoing or
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arising therefrom, reserves and credit balances arising thereunder and cash and
non-cash proceeds of any and all of the foregoing.
"HOMESITE PROGRAM" has the meaning set forth in Article I of
the Reorganization Plan.
"INSOLVENCY OR RECEIVERSHIP PROCEEDING" means any case,
proceeding or other action, voluntary or involuntary, (i) under any existing or
future law of any jurisdiction, domestic or foreign, relating to the bankruptcy,
insolvency, reorganization or similar relief of debtors, commenced for purposes
of having an order of relief entered with respect to the Company or any
Subsidiary, seeking to adjudicate the Company or any Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding up,
liquidation, dissolution, composition or other relief with respect to the
Company or any Subsidiary or its debts, including, without limitation, any case
or proceeding filed by or against the Company or any Subsidiary pursuant to
Title 11 of the United States Code (the "United States Bankruptcy Code"), or
(ii) seeking appointment of a receiver, trustee, custodian or other similar
official for the Company or any Subsidiary or for all or any substantial part of
its assets, or any proceeding or event in which the Company or any of its
Subsidiaries shall make a general assignment for the benefit of its creditors.
"INVESTMENT AGREEMENT" means that certain Investment Agreement
dated as of February 7, 1997, amended as of March 20, 1997, and amended and
restated as of May 15, 1997, by and between the Company and the Secured
Agreement Obligees, providing among other things for the execution and delivery
of the Secured Agreement and the issuance of the Preferred Stock, as amended
concurrently herewith.
"INVESTMENT INSTRUMENTS" means the Investment Agreement, the
Preferred Stock, the certificate of designation of preferences and rights
relating to the Preferred Stock, and all other documents, instruments, and
agreements executed in connection therewith, each as from time to time amended,
supplemented or otherwise modified in accordance with the terms hereof and
thereof.
"INVESTMENTS" means any and all promissory notes, Capital
Stock (other than Subsidiary Stock), bonds, debentures and securities, held by
the Company or any Subsidiary, whether now owned or hereafter acquired.
"JOINT VENTURE" shall have the meaning ascribed to such term
in the Revolving Loan Agreement.
"JUNIOR CREDITOR GROUP" means: (a) prior to the time, if any,
that all DK Loan Obligations have been paid in full, the Secured Agreement
Obligee Group and the Anglo American Lender Group, and each of them; and (b) at
and after the time,
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if any, that all DK Loan Obligations have been paid in full, the Secured
Agreement Obligee Group.
"LIEN" means any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction in respect of any of the foregoing).
"LIEN RELEASE EVENT" has the meaning set forth in Section
2.17(a) hereof.
"NON-PAYMENT BLOCKAGE PERIOD" means, with respect to any
NonPayment Default Subordination Event, the period from and including the date
of receipt by the Representative(s) of the Junior Creditor Group of a
Non-Payment Default Subordination Notice relating thereto until the first to
occur of (a) the 180th day after receipt of such Non-Payment Default
Subordination Notice; PROVIDED, HOWEVER, that if, on or before such date, the
Senior Creditor Group has (i) accelerated the Designated Senior Indebtedness,
and (ii) has commenced and diligently and in good faith is pursuing a judicial
proceeding to collect the Designated Senior Indebtedness or has given notice of
a non-judicial sale of collateral securing the Designated Senior Indebtedness
and diligently is pursuing such non-judicial remedies to effect the foreclosure
and sale of such collateral, then such period shall continue unless and until
the Senior Creditor Group either rescinds such acceleration in writing, or
abandons, terminates, or fails diligently to pursue such judicial proceeding, or
abandons, terminates, or fails diligently to pursue such non-judicial remedies
to realize upon its collateral other than by reason of the commencement of an
Insolvency or Receivership Proceeding in which the Senior Creditor Group is
diligently and in good faith pursuing its available remedies, (b) the date on
which all of the Designated Senior Indebtedness shall have been paid in full,
(c) the date on which such Non-Payment Default Subordination Event shall have
been waived or cured (if susceptible of cure), in each case in accordance with
the relevant Secured Debt Documents, or (d) the date on which the Secured
Creditors to whose benefit such Non-Payment Blockage Period runs shall expressly
waive the benefit thereof in writing.
"NON-PAYMENT DEFAULT SUBORDINATION EVENT" shall have the
meaning specified in SECTION 2.16(b).
"NON-PAYMENT DEFAULT SUBORDINATION NOTICE" shall mean a
written notice from or on behalf of the Representative of the Senior Creditor
Group of the existence of a Non-Payment Default Subordination Event and
specifically designating
14
such notice as a "Non-Payment Default Subordination Notice." The foregoing
notwithstanding, the giving of a Dividend Blockage Notice shall be deemed to be
the giving of a Non-Payment Default Subordination Notice to the Anglo American
Representative and the Secured Agreement Obligee Representative for all purposes
of this Agreement, and the giving by the Representative of the Senior Creditor
Group of a Payment Default Subordination Notice or a Non-Payment Default
Subordination Notice to the Anglo American Representative and the Secured
Agreement Obligee Representative shall be deemed to be the giving of a Dividend
Blockage Notice for all purposes of this Agreement.
"NON-PAYMENT STANDSTILL PERIOD" means, with respect to any
NonPayment Default Subordination Event, the period from and including the date
of receipt by the Representative(s) of the Junior Creditor Group of a
Non-Payment Default Subordination Notice relating thereto until the first to
occur of (a) the 180th day after receipt of such Non-Payment Default
Subordination Notice; PROVIDED, HOWEVER, that if, on or before such date, the
Senior Creditor Group has (i) accelerated the Designated Senior Indebtedness,
and (ii) has commenced and is diligently and in good faith pursuing a judicial
proceeding to collect the Designated Senior Indebtedness or has given notice of
a non-judicial sale of collateral securing the Designated Senior Indebtedness
and is diligently pursuing such non-judicial remedies to effect the foreclosure
and sale of such collateral, then such period shall continue unless and until
the Senior Creditor Group either rescinds such acceleration in writing, or
abandons, terminates, or fails to diligently pursue such judicial proceeding, or
abandons, terminates, or fails to diligently pursue such non-judicial
proceedings to realize upon its collateral other than by reason of the
commencement of an Insolvency or Receivership Proceeding in which the Senior
Creditor Group is diligently pursuing its available remedies, (b) the date on
which all of the Designated Senior Indebtedness shall have been paid in full,
(c) the date on which such Non-Payment Default Subordination Event shall have
been waived or cured (if susceptible of cure), in each case in accordance with
the relevant Secured Debt Documents, or (d) the date on which the Secured
Creditors to whose benefit such Non-Payment Standstill Period runs shall
expressly waive the benefit thereof in writing.
"NOTES" means collectively, (i) that certain $850,000
promissory note dated as of December 31, 1998, made by the Company to the order
of the Secured Agreement Obligees, and (ii) that certain $1,000,000 promissory
note dated as of December 31, 1998, made by the Company to the order of the
Secured Agreement Obligees.
"OBLIGATIONS" means, collectively, the DK Loan Obligations,
the Anglo American Loan Obligations and the Secured Agreement Obligations.
15
"OBLIGORS" means the Company and each and every one of its
Subsidiaries, and each of them, together with their respective successors and
assigns.
"OLD INTERCREDITOR AGREEMENT" has the meaning specified in
RECITAL G hereof.
"PAID IN FULL" has the meaning specified in SECTION 2.16.
"PAYMENT BLOCKAGE PERIOD" means, with respect to any Payment
Default Subordination Event, the period from and including the date of receipt
by the Representative(s) of the Junior Creditor Group of a Payment Default
Subordination Notice relating thereto until the first to occur of (a) the 180th
day after receipt of such Payment Default Subordination Notice; PROVIDED,
HOWEVER, that if, on or before such date, the Senior Creditor Group has (i)
accelerated the Designated Senior Indebtedness, and (ii) has commenced and
diligently and in good faith is pursuing a judicial proceeding to collect the
Designated Senior Indebtedness or has given notice of a non-judicial sale of
collateral securing the Designated Senior Indebtedness and diligently is
pursuing such non-judicial remedies to effect the foreclosure and sale of such
collateral, then such period shall continue unless and until the Senior Creditor
Group either rescinds such acceleration in writing, or abandons, terminates, or
fails diligently to pursue such judicial proceeding, or abandons, terminates, or
fails diligently to pursue such non-judicial remedies to realize upon its
collateral other than by reason of the commencement of an Insolvency or
Receivership Proceeding in which the Senior Creditor Group is diligently and in
good faith pursuing its available remedies, (b) the date on which all of the
Designated Senior Indebtedness shall have been paid in full, (c) the date on
which such Payment Default Subordination Event shall have been waived or cured
(if susceptible of cure), in each case in accordance with the relevant Secured
Debt Documents, or (d) the date on which the Secured Creditors to whose benefit
such Payment Blockage Period runs shall expressly waive the benefit thereof in
writing.
"PAYMENT DEFAULT SUBORDINATION EVENT" shall have the meaning
specified in SECTION 2.16(a).
"PAYMENT DEFAULT SUBORDINATION NOTICE" shall mean a written
notice from or on behalf of the Representative of the Senior Creditor Group of
the existence of a Payment Default Subordination Event and specifically
designating such notice as a "Payment Default Subordination Notice."
"PAYMENT STANDSTILL PERIOD" means, with respect to any Payment
Default Subordination Event, the period from and including the date of receipt
by the Representative(s) of the Junior Creditor Group of a Payment Default
Subordination Notice relating thereto until the first to occur of (a) the 180th
day after receipt of such Payment Default Subordination Notice; PROVIDED,
HOWEVER, that if, on or before such
16
date, the Senior Creditor Group has (i) accelerated the Designated Senior
Indebtedness, and (ii) has commenced and diligently and in good faith is
pursuing a judicial proceeding to collect the Designated Senior Indebtedness or
has given notice of a non-judicial sale of collateral securing the Designated
Senior Indebtedness and diligently is pursuing such non-judicial remedies to
effect the foreclosure and sale of such collateral, then such period shall
continue unless and until the Senior Creditor Group either rescinds such
acceleration in writing, or abandons, terminates, or fails diligently to pursue
such judicial proceeding, or abandons, terminates, or fails diligently to pursue
such non-judicial remedies to realize upon its collateral other than by reason
of the commencement of an Insolvency or Receivership Proceeding in which the
Senior Creditor Group is diligently and in good faith pursuing its available
remedies, (b) the date on which all of the Designated Senior Indebtedness shall
have been paid in full, (c) the date on which such Payment Default Subordination
Event shall have been waived or cured (if susceptible of cure), in each case in
accordance with the relevant Secured Debt Documents, or (d) the date on which
the Secured Creditors to whose benefit such Payment Standstill Period runs shall
expressly waive the benefit thereof in writing.
"PERMITTED PAYMENTS" has the meaning set forth in Section 2.7
hereof.
"PERSON" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.
"PERSONAL PROPERTY" means the following personal property of
the Company or any Subsidiary (exclusive of Homesite Contracts Receivable and
Commercial Receivables of the Company or any Subsidiary):
(i) the Bank Accounts;
(ii) the Investments;
(iii) any and all accounts, contract rights, chattel paper,
instruments and documents, including, without limitation, any right to payment
for goods sold or leased or services rendered, whether now owned or hereafter
acquired;
(iv) any and all machinery, apparatus, equipment,
fittings, furniture, fixtures, motor vehicles and other tangible personal
property of every kind and description, whether now owned or hereafter acquired,
and wherever located, and all parts, accessories and special tools and
replacements therefor;
(v) any and all general intangibles, whether now owned
or hereafter created or acquired, including, without limitation, all choices in
action, causes of action, rights in and to any and all Condemnation Awards,
corporate or other business
17
records, deposit accounts, invention, designs, patents, patent applications,
trademarks, trade names, trade secrets, goodwill, copyrights, registrations,
licenses, franchises, customer lists, tax refund claims, computer programs, any
other intellectual property, all claims under guaranties, security interests or
other security to secure payment of any accounts by an account debtor, all
rights to indemnification and all other intangible property of every kind and
nature, including, without limitation, (i) the interests, if any, of the Company
or any Subsidiary in payments, proceeds, residuals and remainders from, or as
beneficiary of, the Reserve Accounts, Claims Disbursement Account or other such
accounts, (ii) any and all beneficial interests in the trusts pursuant to which
title to the Trust Property is held, and (iii) any and all other proceeds or
choices in action with respect to, or rights to receive proceeds from, any
condemnation of any Real Property or Personal Property of the Company or any
Subsidiary, whether now in existence or hereafter created or acquired;
(vi) any and all goods which are, or may at any time be,
goods held for sale or lease or furnished under contracts of service or raw
materials, work-in-process or materials used or consumed in business,
wheresoever located and whether now owned or hereafter created or acquired,
including, without limitation, all such property the sale or other disposition
of which has given rise to accounts and which has been returned to or
repossessed or stopped in transit;
(vii) all monies, cash, residues and property of any kind,
now or at any time hereafter in the possession or under the control of any of
the Collateral Agent, DK Lenders, Anglo American Lenders, Secured Agreement
Obligees or any bailee, agent, or representative of any of them;
(viii) all accessions to, all substitutions for, and all
replacements, products and proceeds of, the foregoing, including, without
limitation, proceeds of insurance policies insuring the aforesaid property and
documents covering the aforesaid property, all property received wholly or
partly in trade or exchange for such property, and all rents, revenues, issues,
profits and proceeds arising from the sale, lease, license, encumbrance,
collection or any other temporary or permanent disposition of such items or any
interest therein whether or not they constitute "proceeds" as defined in the
Uniform Commercial Code; and
(ix) all books, records, documents and ledger receipts
pertaining to any of the foregoing, including, without limitation, customer
lists, credit files, computer records, computer programs, storage media and
computer software used or acquired in connection with generating, processing and
storing such books and records or otherwise used or acquired in connection with
documenting information pertaining to the aforesaid property.
18
"PREFERRED STOCK" means the Series A Cumulative Redeemable
Convertible Preferred Stock, liquidation preference $1,000 per share, of the
Company issued pursuant to the Investment Agreement.
"REAL PROPERTY" means any and all real property and fixtures
and interests in real property and fixtures now owned or hereafter acquired by
the Company or any Subsidiary.
"REORGANIZATION PLAN" means the Second Amended Joint Plan of
Reorganization of General Development Corporation jointly proposed in the
Reorganization Proceedings by the Company and the Official Unsecured Creditors'
Committee, filed on October 9, 1991 with the Clerk of the Bankruptcy Court, as
modified by Modification filed March 9, 1992.
"REORGANIZATION PROCEEDING" means the cases commenced on April
6 and April 12, 1990 under Chapter 11 of Title 11 of the United States Code in
the Bankruptcy Court by GDC (Case 90-12231-BKC-AJC), General Development
Financial Services, Inc. (Case 90-12232-BKC-AJC), General Development Resorts,
Inc. (Case 90-12233 BKC-AJC), Town and Country II, Inc. (formerly Florida
Residential Communities, Inc.) (Case 90-12234-BKC-AJC), Five Star Homes Group,
Inc. (Case 90-12235-BKC-AJC), Five Star Homes, Inc. (Case #90-12338-BKC-AJC),
GDV Financial Corporation (Case #90-12236-BKC-AJC) and Environmental Quality
Laboratory, Inc. (Case #90-12237-BKC-AJC).
"REDEMPTION NOTICE" shall have the meaning ascribed to such
term in Section 5(c) of Annex A to the Amended and Restated Certificate of
Incorporation of the Company.
"REPURCHASE NOTICE" shall have the meaning ascribed to such
term in Section 8(a) of Annex A to the Amended and Restated Certificate of
Incorporation of the Company.
"REPRESENTATIVE" means, with respect to the DK Lenders, the DK
Representative, with respect to the Anglo American Lenders, the Anglo American
Representative, with respect to the Secured Agreement Obligees, the Secured
Agreement Obligee Representative, and with respect to the Senior Creditor Group,
(a) prior to the time, if any, that all DK Loan Obligations have been paid in
full, the DK Representative and (b) at and after the time, if any, that all DK
Loan Obligations have been paid in full, the Anglo American Representative.
"RESERVE ACCOUNTS" means: the Disbursement Account (as defined
in Section 8.4 of the Reorganization Plan); the Disputed Claims Reserve Account
(as defined in Section 8.7 of the Reorganization Plan); any reserve of
securities,
19
utility-satisfied lots, cash or other assets that is established pursuant to the
Reorganization Plan, the Homesite Program, or any agreement resolving a claim of
the State of Florida in the Reorganization Proceedings, to satisfy requests for
utility service; and any reserve of securities or cash established to fund road
or other improvements pursuant to any agreement resolving a claim of the State
of Florida in the Reorganization Proceedings, including, without limitation, the
Division Class 14 Utility Fund Trust Agreement and the Improvement Fund Trust
Agreement executed by and among the State of Florida, Department of Business
Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, the
Company and the Trustee, the Class 14 Utility Fund Trust Agreement and the
Homesite Program Utility Fund Trust Agreement executed by and between the
Company and the Trustee, the Class 14 Utility Lot Trust Agreement executed by
and between the Company and the Trustee, as described in Section 7.6 of the
Reorganization Plan, if any.
"RESTATEMENT" has the meaning set forth in Section 2.9(a)
hereof.
"REVOLVING LOAN AGREEMENT" means the Third Amended and
Restated Revolving Loan Agreement dated as of December 31, 1998 by and among the
Company, the financial institutions listed on the signature pages thereof (the
"Revolving Loan Banks"), X.X. Xxxxxxxx & Co., LLC, a New York limited liability
company, as agent for the Revolving Loan Banks, and X.X. Xxxxxxxx & Co., LLC, a
New York limited liability company, as collateral agent for the Revolving Loan
Banks, pursuant to which the Revolving Loan Banks have agreed to make certain
loans to the Company, together with all amendments, modifications, extensions,
substitutions and renewals thereof made in accordance with the terms hereof and
thereof.
"REVOLVING LOAN COMMITMENTS" means the collective obligations
of the lenders (as defined in the Revolving Loan Agreement) party to the
Revolving Loan Agreement to make advances of Loans pursuant to the Revolving
Loan Agreement, whether or not the conditions precedent therefor are met and as
the same may be increased pursuant to SECTION 2.9(a) hereof.
"REVOLVING LOANS" means the "Loans," the "Letters of Credit,"
and the "L/C Guarantees" (or any substitute cash collateral) outstanding from
time to time under (and as defined in) the Revolving Loan Agreement.
"SALE COLLATERAL" means any real or personal property acquired
as a result of a "credit bid" at a foreclosure or bankruptcy sale of any
Collateral.
"SECURED AGREEMENT" means that certain Secured Agreement
(originally entitled "Secured Note Agreement") dated as of February 7, 1997,
amended and restated as of May 15, 1997, executed by and among the Company, the
Secured Agreement Obligees and the Collateral Agent, as amended, supplemented or
otherwise
20
modified from time to time in accordance with the terms hereof and thereof, as
amended concurrently herewith.
"SECURED AGREEMENT DOCUMENTS" means the Secured Agreement, the
"Transaction Documents" as defined in the Secured Agreement, the Investment
Instruments, and any and all instruments, documents and agreements executed in
connection therewith, as amended, supplemented or otherwise modified from time
to time in accordance with the terms hereof and thereof.
"SECURED AGREEMENT EVENT OF DEFAULT" means a defined "Event of
Default" under the Secured Agreement or the Investment Instruments, as the case
may be, or related Secured Debt Documents.
"SECURED AGREEMENT OBLIGATIONS" means: (i) any indebtedness
and obligations now or hereafter owing to the Secured Agreement Obligees under
or in connection with the Secured Agreement Documents, including, without
limitation, redemption and repurchase obligations with respect to the Preferred
Stock; (ii) all interest, prepayment premiums, dividends and late payment fees
now or hereafter payable with respect thereto; (iii) all existing and future
guaranty obligations relating to the foregoing; (iv) all other fees (including,
without limitation, attorneys' and paralegals' fees and expenses) and other
amounts now or hereafter payable to the Secured Agreement Obligees, or any of
them, or their agents under or in respect of the Secured Agreement Documents;
and (v) all obligations of the Company to the Secured Agreement Obligees under
or with respect to the Notes (whether for principal, interest, fees, costs,
expenses, or otherwise) and all obligations of any Subsidiary of the Company
with respect thereto (whether pursuant to a guaranty thereof, as a co-maker
thereof or co-obligor with respect thereto, or otherwise).
"SECURED AGREEMENT OBLIGEE GROUP" means the Secured Agreement
Obligees, and the Secured Agreement Obligee Representative and the Collateral
Agent when and to the extent acting on behalf thereof.
"SECURED AGREEMENT OBLIGEE REPRESENTATIVE" means AP-AGC, LLC,
a Delaware limited liability company, whom each of the Secured Agreement
Obligees hereby appoints as its official representative for purposes of (a) the
receipt for and on behalf of the Secured Agreement Obligees hereunder of any
notice hereunder from the DK Representative or the Anglo American
Representative, and (b) the giving to the DK Representative or the Anglo
American Representative of any notice by and on behalf of the Secured Agreement
Obligees. Unless the DK Representative and the Anglo American Representative
shall have been notified otherwise in accordance with SECTION 4.1, the DK
Representative and the Anglo American Representative may presume that AP-AGC,
LLC, a Delaware limited liability company, at all times continues to be the
Secured Agreement Obligee Representative.
21
"SECURED AGREEMENT OBLIGEES" means the holders of the
indebtedness outstanding under the Secured Agreement Documents or the Preferred
Stock, and their respective successors and assigns. On the date hereof, the
Secured Agreement Obligee is AP-AGC, LLC.
"SECURED CREDITORS" means the DK Lender Group, the Anglo
American Lender Group, and the Secured Agreement Obligee Group.
"SECURED DEBT DOCUMENTS" means, collectively, the DK Loan
Documents, the Anglo American Loan Documents, and the Secured Agreement
Documents, each as amended, supplemented or otherwise modified from time to time
in accordance with the terms hereof and thereof.
"SECURED PARTIES" means, individually and collectively, the DK
Lender Group, the Anglo American Lender Group, the Secured Agreement Obligee
Group, and their respective successors and assigns.
"SENIOR CREDITOR GROUP" means: (a) prior to the time, if any,
that all DK Loan Obligations have been paid in full, the DK Lender Group; and
(b) at and after the time, if any, that all DK Loan Obligations have been paid
in full, the Anglo American Lender Group.
"SERIES B STOCK" has the meaning set forth in Section 4.14
hereof.
"SP SUB" means AGC-SP, INC., a Delaware corporation, and any
successor entity thereto with which SP Sub combines, merges, or consolidates.
"SP SUB ENTITIES" means SP Sub and any, each, and every
Subsidiary of SP Sub.
"STANDSTILL PERIOD" means a Non-Payment Standstill Period, a
Payment Standstill Period, or both. If a Payment Standstill Period commences
during a NonPayment Standstill Period, or VICE-VERSA, then the combined period
is a "Standstill Period."
"SUBORDINATED OBLIGATIONS" has the meaning set forth in
SECTION 2.16.
"SUBSIDIARY" means as to any Person, a corporation,
partnership, trust (exclusive of any trust created in connection with a Reserve
Account), or other entity of which shares of stock, partnership interests,
beneficial interests or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership,
22
trust (exclusive of any trust created in connection with a Reserve Account) or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Company. Unless otherwise indicated, all references to a Subsidiary or
Subsidiaries of the Company shall not mean, include, or refer to Unrestricted
Subsidiaries (other than the SP Sub Entities, which shall be Subsidiaries unless
otherwise expressly indicated), the Excluded Subsidiaries, or the Joint
Ventures. To the extent that any SP Sub Entity is a joint venturer or partner of
a Joint Venture, with respect to which Joint Venture neither the Company nor any
Subsidiary of the Company other than SP Sub or any Subsidiary of SP Sub is a
joint venturer or partner, such Joint Venture shall be considered a Subsidiary
of SP Sub for purposes of this Agreement.
"SUBSIDIARY STOCK" means the Capital Stock of any and all
Subsidiaries (including the Excluded Subsidiaries and the Unrestricted
Subsidiaries).
"TERM LOAN" means the "Term Loan" (in the original principal
amount of $30,000,000) outstanding from time to time under (and as defined in)
the Term Loan Agreement.
"TERM LOAN AGREEMENT" means the Term Loan Agreement dated as
of December 31, 1998 by and among the Company, the financial institutions listed
on the signature pages thereof (the "Term Lenders"), Anglo American Financial,
as agent for the Term Lenders, and X.X. Xxxxxxxx & Co., LLC, a New York limited
liability company, as collateral agent for the Term Lenders, pursuant to which
the Term Lenders have agreed to make the Term Loans to the Company, together
with all amendments, modifications, extensions, substitutions and renewals
thereof made in accordance with the terms hereof and thereof.
"TRUST PROPERTY" means the real property held in trust
pursuant to (i) Trust Agreement No. 06-01-009-6082101, dated as of January 17,
1991, by and between NCNB National Bank of Florida, as Trustee for the benefit
of the Company, the Beneficiary; (ii) Trust Agreement No. 06-01-009-6081954,
dated as of January 17, 1991, by and between NCNB National Bank of Florida, as
Trustee for the benefit of the Company, the Beneficiary; (iii) Trust Agreement
No. 06-01-009-6082655, dated as of January 17, 1991, by and between NCNB
National Bank of Florida, as Trustee for the benefit of the Company and General
Development Financial Services, Inc., the Beneficiaries; and (iv) Trust
Agreement No. 2, dated as of May 31, 1991, by and between Xxxx Xxxxxx, Esq., as
Trustee for the benefit of the Company and Cumberland Cove, Inc., the
Beneficiaries.
23
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code of
the State of New York, as amended from time to time.
"UNRESTRICTED SUBSIDIARIES" means the Subsidiaries of the
Company listed in Schedule 2 attached hereto.
SECTION 2. INTERCREDITOR PROVISIONS
2.1 PRIORITY OF LIENS. (a) Irrespective of the time,
order or method of attachment, perfection, filing or recording of any Lien in
any Collateral granted or to be granted to the Secured Parties, or any of them,
and notwithstanding anything to the contrary contained in any Secured Debt
Document or in any other document pertaining to the transactions contemplated
therein or any provision of the Uniform Commercial Code or other applicable law,
but subject to the provisions of SECTION 2.4 hereof, the Secured Parties agree,
as among themselves, that the Liens of the Secured Parties upon the Collateral
shall have the priorities and shall rank as described in the following charts:
================================================================================
OBLIGATIONS ALL COLLATERAL
================================================================================
DK Loan Obligations FIRST PRIORITY
--------------------------------------------------------------------------------
Anglo American Loan Obligations SECOND PRIORITY
--------------------------------------------------------------------------------
Secured Agreement Obligations THIRD PRIORITY
================================================================================
PROVIDED, HOWEVER, in the event that any new Liens are granted to a Secured
Party by a judicial authority in an Insolvency or Receivership Proceeding, the
priority of the Liens of the parties hereto shall be subject to the applicable
court order entered in such Insolvency or Reorganization Proceeding.
For the purpose of the foregoing allocation of priorities, any
claim of a right of setoff shall be treated in all respects as a security
interest, and no claimed right of setoff shall be asserted to defeat or diminish
the rights or priorities provided for herein.
2.2 PAYMENTS ON OR AFTER DETERMINATION EVENT. It is
agreed that, on or after a Determination Event, any and all proceeds of
Collateral, whether from sale, exchange, foreclosure, the collection of proceeds
of insurance or proceeds from the exercise of rights of eminent domain or
condemnation or the enforcement of any Xxxx,
00
or any other disposition of Collateral (including, without limitation, proceeds
in the form of Sale Collateral), shall be applied as follows:
FIRST, to the payment of all costs and expenses of the
applicable Secured Party incurred in connection with the enforcement of any Lien
or exercise of remedies with respect to such Collateral permitted hereunder;
SECOND, to payment of amounts owed to the Collateral Agent on
account of its fees in connection with this Agreement for acting on behalf of
the Secured Parties holding the senior lien in the Collateral to which such
proceeds relate;
THIRD, to payment of any costs, expenses, or liabilities
incurred by the Collateral Agent in performance of its duties hereunder on
behalf of the Secured Parties holding the senior lien in the Collateral to which
such proceeds relate, to the extent such costs, expenses, or liabilities are not
otherwise provided for;
FOURTH, to the Secured Parties, with the proceeds of
Collateral distributed in the order of ranking and priority of their Liens
pursuant to SECTION 2.1 hereof, with amounts to be applied to the payment of
amounts payable to each Secured Party outstanding at the time of such
application in the order provided until exhausted prior to application toward
amounts payable to the subordinate Secured Party; PROVIDED, HOWEVER, that to the
extent the outstanding DK Loan Obligations include DK Loan Letter of Credit
Obligations comprising amounts available to be drawn under issued and
outstanding letters of credit pursuant to the Revolving Loan Agreement, the
Collateral which, pursuant to this paragraph FOURTH, would be applied to the
payment of the amount of such DK Loan Letter of Credit Obligations if such
amounts were drawn and immediate reimbursement thereof were required shall be
deposited into and held in such Cash Collateral Accounts as the DK Lenders may
require as further security for such outstanding DK Loan Letter of Credit
Obligations, and as further security for all other Obligations secured by such
Collateral, until the contingent obligations represented by such DK Loan Letter
of Credit Obligations either mature and are paid or are retired without the
contingency occurring. To the extent that such DK Loan Letter of Credit
Obligations mature and become reimbursable by the Company or any Subsidiary to
the DK Lenders, such cash collateral shall be distributed to the DK Lenders on
account of such DK Loan Letter of Credit Obligations. To the extent that such DK
Loan Letter of Credit Obligations are retired without such reimbursement
obligation occurring, such cash collateral shall be reapplied in the applicable
sequence described above as if such cash collateral had been received at the
time of the retirement of such DK Loan Letter of Credit Obligations; and
FIFTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
25
2.3 SHARING OF PROCEEDS ON AND AFTER A DETERMINATION
EVENT, OR OTHERWISE. The Secured Parties agree among themselves that, in the
event any Secured Party shall obtain a payment of proceeds of Collateral,
including, without limitation, proceeds from the setoff of Bank Account
liabilities, on and after a Determination Event which would otherwise be subject
to distribution as provided in SECTION 2.2, or if any Secured Party shall
otherwise receive a payment of proceeds to which it is not entitled pursuant to
the express terms of this Agreement, any such proceeds shall be immediately
remitted or transferred to the Collateral Agent for application as herein
provided, and the Secured Parties further agree to make such other adjustments
from time to time, as shall be equitable to the end that all Secured Parties
share such proceeds in accordance with their respective priorities as provided
for herein. The Secured Parties further agree among themselves that if any such
payment shall be rescinded or must otherwise be restored, each Secured Party
which shall have shared the proceeds thereof shall return its share of such
proceeds to each Secured Party whose payment shall have been rescinded or
otherwise restored. Anything in this Agreement to the contrary notwithstanding,
(a) unless and until the DK Loan Obligations shall have been paid in full and
satisfied, from and after a Determination Event, neither the Anglo American
Lenders nor the Secured Agreement Obligees may take or receive from the Company,
and the Company will not make, give or permit, directly or indirectly, by
set-off, redemption, purchase or in any other manner, any payment, prepayment,
collateral, security or guarantee, for the whole or any part of the Subordinated
Obligations (other than the execution and delivery of the relevant Secured Debt
Documents applicable thereto) and (b) unless and until the Anglo American Loan
Obligations shall have been paid in full and satisfied, from and after a
Determination Event, the Secured Agreement Obligees may not take or receive from
the Company, and the Company will not make, give or permit, directly or
indirectly, by set-off, redemption, purchase or in any other manner, any
payment, prepayment, collateral, security or guarantee, for the whole or any
part of the Secured Agreement Obligations (other than the execution and delivery
of the relevant Secured Debt Documents applicable thereto); PROVIDED, HOWEVER,
that the foregoing shall not preclude (x) the making of any demand for payment
by the Anglo American Lender Group on the Company or any of its Subsidiaries or
the giving of notice to them of the acceleration of any Obligation, in each
case, after 15 days prior written notice of such proposed demand for payment or
notice of acceleration shall have been given by the Anglo American
Representative to the DK Representative, or (y) the giving of the Repurchase
Notice (as provided for in the Secured Agreement Documents) by the Secured
Agreement Obligee Group to the Company or any subsidiary of the Company after 15
days prior written notice to the Representative of the Senior Creditor Group by
the Representative of the Secured Agreement Obligees, PROVIDED, that the giving
of any such notice shall not (i) permit the Company to effectuate any such
redemption, purchase, demand or acceleration or make any payment in respect
thereof, or (ii) permit the commencement by or on behalf of the Anglo American
Lender Group or the Secured Agreement Obligee Group of any legal proceeding
against the Company or any
26
of its Subsidiaries to collect any proceeds from such redemption, purchase,
demand or acceleration until the DK Loan shall have been paid in full, and
PROVIDED FURTHER, that the giving of such notice shall not supersede any
subordination of Liens or claims provided for in this Agreement, and PROVIDED
FURTHER that any obligation provided for in this Agreement to disgorge or turn
over any payment or transfer received in violation of any provision of this
Agreement subordinating any Lien or claim shall continue to be applicable
notwithstanding the giving of any such notice.
2.4 INTERESTS IN COLLATERAL.
(a) REQUIREMENT THAT LIENS BE PERFECTED. In the
event that any Lien of any Secured Party, or group of Secured Parties, on all or
any part of the Collateral is voluntarily released (or, in the case of the
Notes, the Lien securing the Notes is unperfected), then the Secured Party whose
Lien has been released (or, in the case of the Notes, is unperfected), shall not
share with the other Secured Parties in the proceeds of such Collateral pursuant
to the terms of this Agreement. The effect and operation of this SECTION 2.4
shall not impair or diminish or be construed to impair or diminish any rights of
a Secured Party against either the Company or any Subsidiary. Without limiting
the effect of the foregoing, any Secured Party whose Lien has been released, is
unperfected or deemed invalid or unenforceable, may, subject to the rights of
the other Secured Parties hereunder, exercise its remedies as against the
Company or any Subsidiary, as appropriate, including in respect of the
Collateral (to the extent enforceable), or take other action not inconsistent
with the terms or intent of this Agreement against the Company or any
Subsidiary, as appropriate, or their property.
(b) NONDISTURBANCE. In no event shall any party
hereto institute, or join as a party in the institution of or knowingly finance
or otherwise assist in the commencement or prosecution of, any action, suit or
proceeding contesting in any manner, or raising any defense to, the validity,
perfection, priority (as set forth herein) or enforceability of any Lien of any
Secured Party or alleging the avoidability thereof.
2.5 PAYMENTS ON GUARANTEES. The Secured Parties agree
among themselves that, in the event that any such Secured Party receives a
payment on a Guarantee on or after a Determination Event in violation of the
priorities provided for in SECTION 2.16, such payments shall be immediately
remitted or transferred to the Collateral Agent for distribution in accordance
with the relative payment priorities set forth in SECTION 2.16.
2.6 DETERMINATION OF RELATIVE INTERESTS. The Collateral
Agent shall, in determining the relative interests of the Secured Parties
hereunder, be entitled to rely on the representations of the Secured Parties as
to the amount of the respective Obligations and interests of the Secured Parties
therein. By execution hereof, the
27
Secured Parties agree to promptly respond to any request from the Collateral
Agent for information necessary to assist it in the determination of their
respective interests hereunder, subject to any applicable confidentiality
limitations.
2.7 TURNOVER AND DIRECTION TO COLLATERAL AGENT. Subject
to any rights of subrogation provided for in SECTION 2.16, by execution of this
Agreement, except for payments or proceeds of Collateral received by (i) the DK
Lenders and/or the Anglo American Lenders in respect of current interest and
amortization provided for in the Revolving Loan Agreement and the Term Loan
Agreement, as applicable, on the date hereof, and (ii) the Secured Agreement
Obligees in respect of (x) current interest on the Notes or (y) the 20% Profits
Interest (as defined in the Revolving Loan Agreement) (all such payments or
proceeds of Collateral being hereinafter referred to as the "Permitted
Payments"), (a) the DK Lenders hereby agree to pay over to the Collateral Agent
promptly upon receipt, any and all payment, proceeds of Collateral or other
amounts referenced in SECTIONS 2.2, 2.3, OR 2.5 for application by the
Collateral Agent to the Obligations as herein provided; (b) the Anglo American
Lenders hereby agree to pay over to the Collateral Agent promptly upon receipt,
any and all payment, proceeds of Collateral or other amounts referenced in
SECTIONS 2.2, 2.3, OR 2.5 for application by the Collateral Agent to the
Obligations as herein provided; (c) the Secured Agreement Obligees hereby agree
to pay over to the Collateral Agent promptly upon receipt, any and all payments,
proceeds of Collateral or other amounts referenced in SECTIONS 2.2, 2.3, OR 2.5
for application by the Collateral Agent to the Obligations as herein provided;
and (d) the DK Lenders, the Anglo American Lenders, and Secured Agreement
Obligees hereby direct the Collateral Agent, on and after receipt of proceeds as
provided in CLAUSES (a), (b) AND (c) OF THIS SECTION 2.7 to apply such proceeds
to the Obligations as herein provided.
2.8 CREDIT BIDDING. The Secured Parties hereby agree
that: (a) except with the unanimous consent of the DK Lender Group and the Anglo
American Lender Group, the Anglo American Lender Group shall not "credit bid"
for any Collateral at a foreclosure or bankruptcy sale, until the net cash
proceeds of such foreclosure or sale shall be sufficient to satisfy the DK Loan
Obligations in full; and (b) except with the unanimous consent of the Secured
Parties, the Secured Agreement Obligee Group shall not "credit bid" for any
Collateral at a foreclosure or bankruptcy sale.
2.9 MODIFICATIONS OF SECURED DEBT DOCUMENTS, INCREASES IN
OBLIGATIONS.
(a) The DK Lenders may enter into amendments,
modifications, supplements, renewals, replacements, restatements, or extensions
(hereinafter individually and collectively, a "Restatement") of the DK Loan
Documents, without in any way affecting their respective rights and obligations
under
28
this Agreement, but only to the extent that (1) the aggregate principal amount
of the loans so renewed, extended or replaced does not at any time exceed the
principal amount of the DK Loan Obligations in effect prior to such renewal,
extension or replacement, (2) any and all letters of credit and letter of credit
guarantees that remain outstanding under or in connection with the DK Loan
Documents may remain outstanding under the new facility or may be replaced by
new letters of credit or letter of credit guarantees under the renewed, extended
or replacement credit facility do not exceed the aggregate stated amount of all
letters of credit and letter of credit guarantees that were outstanding under
the DK Loan Documents, as the same may have been reduced, (3) the final maturity
of all such loans as so renewed, extended or replaced is no later than the
Maturity Date, as defined in the Term Loan Agreement (the expiry date of the
letters of credit and letter of credit guarantees under or in connection with
the DK Loan Documents may not be renewed), (4) the internal rate of return of
such renewal, extension or replacement facility is no greater than the internal
rate of return of the DK Loan Obligations as in effect prior to such renewal,
extension or replacement (calculated at the ordinary, pre-default interest
rate), (5) such renewed, extended or replacement credit facility is otherwise on
commercially reasonable terms, and (6) this Agreement shall remain in full force
and effect with respect to the renewed, extended or replacement credit facility.
(b) The Secured Agreement Obligees may enter into
amendments, modifications, supplements, renewals, replacements, restatements, or
extensions of the Secured Agreement Documents, without in any way affecting
their respective rights and obligations under this Agreement; PROVIDED that the
Secured Agreement Obligees shall not, without the prior written consent of 51%
of the DK Lenders and of 60% of the Anglo American Lenders: (i) increase their
aggregate commitments to extend credit to the Company or its Subsidiaries
pursuant to the Secured Agreement Documents in excess of the levels in effect as
of the date hereof; or (ii) increase their aggregate commitments to purchase
Preferred Stock in excess of the levels in effect as of the date hereof, EXCEPT
that, so long as no Event of Default has occurred and is continuing under the DK
Loan Documents or the Anglo American Loan Documents, or, if such an Event of
Default has occurred and is continuing but the DK Representative and the Anglo
American Representative have given their consent to such commitments and/or
purchases in the sole discretion of the DK Representative and the Anglo American
Representative, then the Secured Agreement Obligees may without upper dollar
limit increase their aggregate commitments to purchase Preferred Stock, may
without upper dollar limit purchase additional Preferred Stock, or may without
upper dollar limit purchase or commit to purchase other preferred stock of the
Company that is substantially identical to the Preferred Stock in rights and
preferences, and that is subject to the intercreditor provisions hereof or other
substantially identical intercreditor provisions; or (iii) increase the rate or
amount of interest, fees or other earnings on the Secured Agreement Obligations,
or (iv) modify the maturity date or payment terms thereof, including, without
limitation, by providing for the amortization
29
of the outstanding principal balance or any portion thereof prior to payment in
full of the Designated Senior Indebtedness.
(c) The Anglo American Lenders may enter into
amendments, modifications, supplements, renewals, replacements, restatements, or
extensions of the Anglo American Loan Documents, without in any way affecting
their respective rights and obligations under this Agreement; PROVIDED that the
Anglo American Lenders shall not, without the written consent of 51% of the
Secured Agreement Obligees and of 51% of the DK Lenders (i) increase the
aggregate outstanding principal of the Term Loan or otherwise make additional
loans to the Company or any Subsidiary of the Company that would constitute
Anglo American Loan Obligations hereunder in excess of $5,000,000; or (ii)
modify the maturity date or payment terms thereunder, including, without
limitation, by providing for the amortization of the outstanding principal
balance or any portion thereof prior to payment in full of the DK Loan
Obligations.
(d) If at any time any Secured Debt Document is
amended in a manner which violates this SECTION 2.9 (any such amendment being
hereinafter referred to as a "Non-Complying Amendment"), such Non-Complying
Amendment shall be disregarded for all purposes of this Agreement and, for
purposes of applying the various provisions of this Agreement, the relevant
Secured Debt Document shall be deemed to read as it did immediately prior to
such Non-Complying Amendment, giving effect, however, to any subsequent
amendment thereto which is not a Non-Complying Amendment.
Except as expressly prohibited above pursuant to this SECTION 2.9, the Secured
Parties may grant extensions of time of payment or performance of the
Obligations in which they hold an interest, and make compromises, including
releases of Collateral, and settlements with the Company and Subsidiaries, and
may otherwise amend or modify the Secured Debt Documents to which they are a
party, without the consent of the other Secured Parties, without affecting the
agreements hereunder, except as expressly provided pursuant to SECTION 2.4
hereof.
2.10 AGREEMENT TO SUBORDINATE AND RELEASE.
(a) REQUIRED SUBORDINATIONS AND RELEASES. Each
of the Secured Parties hereby agrees, for the benefit of the other Secured
Parties and not for the benefit of the Company or any Subsidiary of the Company
or any Person claiming by, through, or under the Company or any Subsidiary of
the Company or any other Person, to execute such subordinations and releases of
its Lien upon the Collateral necessary to effectuate the priorities in the
Collateral provided for in this Agreement and/or to the extent expressly
required pursuant to the terms and provisions of their respective Secured Debt
Documents. Each of the Secured Agreement Obligees, the Anglo American Lenders,
and the Collateral Agent (acting in its capacity as the agent
30
of the Secured Agreement Obligees and the Anglo American Lenders) hereby further
agrees, (i) for the benefit of the DK Lenders and the Collateral Agent (acting
in its capacity as the agent of the DK Lenders), to execute such subordinations
and releases of their Liens upon any item of Collateral if and to the extent
that the DK Lenders and the Collateral Agent (acting in its capacity as the
agent of the DK Lenders) expressly subordinate or release, as the case may be,
in writing, their Liens upon such item of Collateral, and (ii) at and after the
time, if any, that all DK Loan Obligations have been paid in full, for the
benefit of the Anglo American Lenders and the Collateral Agent (acting in its
capacity as the agent of the Anglo American Lenders), to execute such
subordinations and releases of their Liens upon any item of Collateral if and to
the extent that the Anglo American Lenders and the Collateral Agent (acting in
its capacity as the agent of the Anglo American Lenders) expressly subordinate
or release, as the case may be, in writing, their Liens upon such item of
Collateral. In addition, the Secured Agreement Obligees hereby direct the
Collateral Agent, to execute and deliver, in the place and stead of the Secured
Agreement Obligees and on their behalf, with full authority, any and all
instruments of subordination required to evidence the third priority Lien of the
Secured Agreement Obligees in the Collateral provided for in this Agreement.
(b) SALES OF COLLATERAL. For the sole and
exclusive benefit of the DK Lenders and their successors and assigns and not for
the benefit of the Company or any Subsidiary of the Company or any Person
claiming by, through, or under the Company or any Subsidiary of the Company or
any other Person, the Secured Agreement Obligees and the Anglo American Lenders
hereby agree that sales of Collateral by the Company and Subsidiaries permitted
under the DK Loan Documents shall be permitted by the Secured Agreement Obligees
and the Anglo American Lenders and the Liens securing the Secured Agreement
Obligations and the Anglo American Loan Obligations upon such Collateral shall
be released at the time of such sales notwithstanding that, at the time of any
sale of such Collateral, there shall exist a default under the Secured Agreement
Documents or the Anglo American Loan Documents. From and after the time, if any,
that all DK Loan Obligations have been paid in full, the Secured Agreement
Obligees hereby further agree that sales of Collateral by the Company and
Subsidiaries permitted under the Anglo American Loan Documents shall be
permitted by the Secured Agreement Obligees and the Liens securing the Secured
Agreement Obligations upon such Collateral shall be released at the time of such
sales notwithstanding that, at the time of any sale of such Collateral, there
shall exist a default under the Secured Agreement Documents.
2.11 LIMITATIONS ON ENFORCEMENT ACTIONS; NOTICES.
(a) CERTAIN ENFORCEMENT ACTIONS. Anything herein
to the contrary notwithstanding, the following CLAUSES (i), (ii), (iii), AND
(iv) of this SUBSECTION (a) shall be applicable only until such time, if any, as
all DK Loan
31
Obligations have been paid in full, and the following CLAUSES (v) AND (vi) of
this SUBSECTION (A) shall be applicable only at and after such time, if any, as
all DK Loan Obligations have been paid in full.
(i) If the Secured Agreement Obligee
Representative shall have received a Payment Default Subordination Notice from
or on behalf of the Representative of the Senior Creditor Group, then during the
Payment Standstill Period the Secured Agreement Obligee Group shall be
prohibited from taking any Enforcement Action with respect to any Obligor or any
Collateral until the Payment Standstill Period shall cease to be in effect.
(ii) If the Secured Agreement Obligee
Representative shall have received a Non-Payment Default Subordination Notice
from or on behalf of the Representative of the Senior Creditor Group, then
during the Non-Payment Standstill Period the Secured Agreement Obligee Group
shall be prohibited from taking any Enforcement Action with respect to any
Obligor or any Collateral until the NonPayment Standstill Period shall cease to
be in effect; PROVIDED, HOWEVER, that, subject to the consent of the
Representative of the Senior Creditor Group, if the Secured Agreement Obligee
Group shall have initiated an Enforcement Action prior to the commencement of
such Non-Payment Standstill Period at a time when the Secured Agreement Obligee
Group had been entitled to do so, then the Secured Agreement Obligee Group shall
not be prevented during such Non-Payment Standstill Period from taking any steps
with respect to such pending Enforcement Action as are required by law or are
reasonably required to avoid material prejudice to the rights of the Secured
Agreement Obligee Group; PROVIDED, FURTHER, HOWEVER, that any proceeds which may
be payable by reason thereof shall be immediately remitted or transferred to the
Collateral Agent for distribution in accordance with the relative payment
priorities set forth in Section 2.16. Upon the termination of any Non-Payment
Standstill Period, the Secured Agreement Obligee Group may, at the sole election
thereof, exercise any and all remedies with respect to the Secured Agreement
Obligations owing by the Obligors or any Collateral available to the Secured
Agreement Obligee Group under this Agreement or applicable law; PROVIDED,
HOWEVER, at the conclusion of such elapsed period, one or more Events of Default
under the Secured Agreement Documents remain in existence and have not been
cured, waived, or rescinded; PROVIDED FURTHER, HOWEVER, that, in any event, any
such Enforcement Action taken by the Secured Agreement Obligee Group shall be
subject to all prior rights of the DK Lender Group and the Anglo American Lender
Group in the Collateral.
(iii) If the Anglo American
Representative shall have received a Payment Default Subordination Notice from
or on behalf of the DK Representative, then during the Payment Standstill
Period, the Anglo American Lender Group shall be prohibited from taking any
Enforcement Action with respect to any Obligor or any Collateral until the
Payment Standstill Period shall cease to be in effect.
32
(iv) If the Anglo American Lender
Representative shall have received a Non-Payment Default Subordination Notice
from or on behalf of the DK Representative, then during the Non-Payment
Standstill Period the Anglo American Lender Group shall be prohibited from
taking any Enforcement Action with respect to any Obligor or any Collateral
until the Non-Payment Standstill Period shall cease to be in effect; PROVIDED,
HOWEVER, that, subject to the consent of the Representative of the Senior
Creditor Group, if the Anglo American Lender Group shall have initiated an
Enforcement Action prior to the commencement of such Non-Payment Standstill
Period at a time when the Anglo American Lender Group had been entitled to do
so, then the Anglo American Lender Group shall not be prevented during such
Non-Payment Standstill Period from taking any steps with respect to such pending
Enforcement Action as are required by law or are reasonably required to avoid
material prejudice to the rights of the Anglo American Lender Group; PROVIDED,
FURTHER, HOWEVER, that any proceeds which may be payable by reason thereof shall
be immediately remitted or transferred to the Collateral Agent for distribution
in accordance with the relative payment priorities set forth in Section 2.16.
Upon the termination of any NonPayment Standstill Period, the Anglo American
Lender Group may, at the sole election thereof, exercise any and all remedies
with respect to the Anglo American Loan Obligations owing by the Obligors or any
Collateral available to the Anglo American Lender Group under this Agreement or
applicable law; PROVIDED, HOWEVER, at the conclusion of such elapsed period, one
or more Events of Default under the Anglo American Loan Documents remain in
existence and have not been cured, waived, or rescinded; PROVIDED FURTHER,
HOWEVER, that, in any event, any such Enforcement Action taken by the Anglo
American Lender Group shall be subject to all prior rights of the DK Lender
Group in the Collateral.
(v) If the Secured Agreement Obligee
Representative shall have received a Payment Default Subordination Notice from
or on behalf of the Anglo American Representative, then during the Payment
Standstill Period the Secured Agreement Obligee Group shall be prohibited from
taking any Enforcement Action with respect to any Obligor or any Collateral
until the Payment Standstill Period shall cease to be in effect.
(vi) If the Secured Agreement Obligee
Representative shall have received a Non-Payment Default Subordination Notice
from or on behalf of the Anglo American Representative, then during the
Non-Payment Standstill Period the Secured Agreement Obligee Group shall be
prohibited from taking any Enforcement Action with respect to any Obligor or any
Collateral until the Non-Payment Standstill Period shall cease to be in effect;
PROVIDED, HOWEVER, that, subject to the consent of the Anglo American
Representative, if the Secured Agreement Obligee Group shall have initiated an
Enforcement Action prior to the commencement of such Non-Payment Standstill
Period at a time when the Secured Agreement Obligee Group had been entitled to
do so, then the Secured Agreement Obligee Group shall not be prevented
33
during such Non-Payment Standstill Period from taking any steps with respect to
such pending Enforcement Action as are required by law or are reasonably
required to avoid material prejudice to the rights of the Secured Agreement
Obligee Group. Upon the termination of any Non-Payment Standstill Period, the
Secured Agreement Obligee Group may, at the sole election thereof, exercise any
and all remedies with respect to the Secured Agreement Obligations owing by the
Obligors or any Collateral available to the Secured Agreement Obligee Group
under this Agreement or applicable law; PROVIDED, HOWEVER, at the conclusion of
such elapsed period, one or more Events of Default under the Secured Agreement
Documents remain in existence and have not been cured, waived, or rescinded;
PROVIDED FURTHER, HOWEVER, that, in any event, any such Enforcement Action taken
by the Secured Agreement Obligee Group shall be subject to all prior rights of
the Anglo American Lender Group in the Collateral.
(vii) The foregoing to the contrary
notwithstanding: (w) The Anglo America Lender Group shall not be subject to a
Standstill Period unless the Secured Agreement Obligee Group also is subject to
a Standstill Period; (x) No Standstill Period shall exceed 365 days in duration
unless, during all periods in excess of 365 days, (A) the maturity of the
Obligations owed to the Senior Creditor Group has been accelerated (or such
Obligations otherwise are due and payable according to their terms), and (B) the
Senior Creditor Group has commenced and is diligently and in good faith pursuing
a judicial proceeding to collect the Designated Senior Indebtedness or has given
notice of a non-judicial sale of Collateral securing the Designated Senior
Indebtedness and is diligently pursuing such non-judicial remedies to effect the
foreclosure and sale of such Collateral, unless prevented by the commencement of
an Insolvency or Receivership Proceeding in which the Senior Creditor Group is
diligently pursuing its available remedies; and (y) In the event that any
Secured Party having a senior priority Lien with respect to any Collateral
pursuant to this Agreement commences to enforce such Lien pursuant to any
judicial proceeding, a Secured Party holding a subordinate Lien upon such
Collateral may not join in any such judicial proceeding for purposes of
enforcing its Lien against such Collateral or participate in any public or
private sale of such Collateral without the prior written consent of the
Representative of the Senior Creditor Group.
(b) CURE OF CROSS-DEFAULT; DE-ACCELERATION.
(i) If a Secured Agreement Event of
Default exists that is premised solely on the existence of a DK Event of
Default, and if such DK Event of Default is cured on a timely basis, waived, or
rescinded, then that Secured Agreement Event of Default likewise automatically
shall be cured, waived, or rescinded. The immediately foregoing sentence
notwithstanding, if, at the time of such cure, waiver, or rescission, other
Secured Agreement Events of Default also exist that are not premised solely on
the existence of a DK Event of Default, such other Secured Agreement Events of
Default shall not automatically be cured, waived, or rescinded
34
pursuant to the provisions of the immediately foregoing sentence; provided that
this sentence shall not limit any right, if any, of any Obligor to cure such
other Secured Agreement Events of Default, or cause them to be rescinded,
elsewhere provided for in this Agreement, in the Secured Agreement or the
Investment Instruments, as the case may be, and related Secured Debt Documents,
or pursuant to applicable law. If the maturity of the Secured Agreement
Obligations or any of them has been accelerated, and if, thereafter, all
existing Secured Agreement Events of Default have been cured, waived, or
rescinded, and all amounts that then would have been due the Secured Agreement
Obligees, had no acceleration occurred, have been paid in full, then such
acceleration automatically shall be rescinded and the originally scheduled
maturity of the Secured Agreement Obligations automatically shall be reinstated
as if the prior acceleration never had occurred. If the Collateral Agent on
behalf of the Secured Agreement Obligees is taking Enforcement Action against
Collateral in accordance with the terms and provisions of this Agreement,
premised on the existence of one or more Events of Default, and if all such
Events of Default are cured, waived, or rescinded, then the Collateral Agent on
behalf of the Secured Agreement Obligees promptly shall suspend further
Enforcement Action to the extent that it may practicably do so without incurring
liability and without breaching enforceable commitments it has already entered
into in connection with such Enforcement Action (such as, by way of
illustration, but not by way of limitation, enforceable agreements to dispose of
Collateral). The provisions of this SECTION 2.11(b)(i) shall not be applicable
during the pendency of an Insolvency or Receivership Proceeding, other than an
involuntary proceeding under the United States Bankruptcy Code in which no order
for relief has been entered. This paragraph is entered into for the sole and
exclusive benefit of the DK Lender Group and the Secured Agreement Obligee
Group, and their respective successors and assigns, and not for the benefit of
the Company or any Subsidiary of the Company or any Person claiming by, through,
or under the Company or any Subsidiary of the Company or any other Person.
(ii) If a Secured Agreement Event of
Default exists that is premised solely on the existence of an Anglo American
Event of Default, and if such Anglo American Event of Default is cured on a
timely basis, waived, or rescinded, then that Secured Agreement Event of Default
likewise automatically shall be cured, waived, or rescinded. The immediately
foregoing sentence notwithstanding, if, at the time of such cure, waiver, or
rescission, other Secured Agreement Events of Default also exist that are not
premised solely on the existence of an Anglo American Event of Default, such
other Secured Agreement Events of Default shall not automatically be cured,
waived, or rescinded pursuant to the provisions of the immediately foregoing
sentence; provided that this sentence shall not limit any right, if any, of any
Obligor to cure such other Secured Agreement Events of Default, or cause them to
be rescinded, elsewhere provided for in this Agreement, in the Secured Agreement
or the Investment Instruments, as the case may be, and related Secured Debt
Documents, or pursuant to applicable law. If the maturity of the Secured
Agreement
35
Obligations or any of them has been accelerated, and if, thereafter, all
existing Secured Agreement Events of Default have been cured, waived, or
rescinded, and all amounts that then would have been due the Secured Agreement
Obligees, had no acceleration occurred, have been paid in full, then such
acceleration automatically shall be rescinded and the originally scheduled
maturity of the Secured Agreement Obligations automatically shall be reinstated
as if the prior acceleration never had occurred. If the Collateral Agent on
behalf of the Secured Agreement Obligees is taking Enforcement Action against
Collateral in accordance with the terms and provisions of this Agreement,
premised on the existence of one or more Events of Default, and if all such
Events of Default are cured, waived, or rescinded, then the Collateral Agent on
behalf of the Secured Agreement Obligees promptly shall suspend further
Enforcement Action to the extent that it may practicably do so without incurring
liability and without breaching enforceable commitments it has already entered
into in connection with such Enforcement Action (such as, by way of
illustration, but not by way of limitation, enforceable agreements to dispose of
Collateral). The provisions of this SECTION 2.11(b)(ii) shall not be applicable
during the pendency of an Insolvency or Receivership Proceeding, other than an
involuntary proceeding under the United States Bankruptcy Code in which no order
for relief has been entered. This paragraph is entered into for the sole and
exclusive benefit of the Anglo American Lender Group and the Secured Agreement
Obligee Group, and their respective successors and assigns, and not for the
benefit of the Company or any Subsidiary of the Company or any Person claiming
by, through, or under the Company or any Subsidiary of the Company or any other
Person.
(iii) If a DK Event of Default exists
that is premised solely on the existence of a Secured Agreement Event of
Default, and if such Secured Agreement Event of Default is cured on a timely
basis, waived, or rescinded, then that DK Event of Default likewise
automatically shall be cured, waived, or rescinded. The immediately foregoing
sentence notwithstanding, if, at the time of such cure, waiver, or rescission,
other DK Events of Default also exist that are not premised solely on the
existence of a Secured Agreement Event of Default, such other DK Events of
Default shall not automatically be cured, waived, or rescinded pursuant to the
provisions of the immediately foregoing sentence; provided that this sentence
shall not limit any right, if any, of any Obligor to cure such other DK Events
of Default, or cause them to be rescinded, elsewhere provided for in this
Agreement, in the DK Loan Documents and related Secured Debt Documents, or
pursuant to applicable law. If the maturity of the DK Loan Obligations or any of
them has been accelerated, and if, thereafter, all existing DK Events of Default
have been cured, waived, or rescinded, and all amounts that then would have been
due the DK Lenders, had no acceleration occurred, have been paid in full, then
such acceleration automatically shall be rescinded and the originally scheduled
maturity of the DK Loan Obligations automatically shall be reinstated as if the
prior acceleration never had occurred. If the Collateral Agent on behalf of the
DK Lenders is taking Enforcement Action against Collateral in accordance with
the terms and provisions of this Agreement, premised on the existence of one or
36
more Events of Default, and if all such Events of Default are cured, waived, or
rescinded, then the Collateral Agent on behalf of the DK Lenders promptly shall
suspend further Enforcement Action to the extent that it may practicably do so
without incurring liability and without breaching enforceable commitments it has
already entered into in connection with such Enforcement Action (such as, by way
of illustration, but not by way of limitation, enforceable agreements to dispose
of Collateral). The provisions of this SECTION 2.11(b)(iii) shall not be
applicable during the pendency of an Insolvency or Receivership Proceeding,
other than an involuntary proceeding under the United States Bankruptcy Code in
which no order for relief has been entered. This paragraph is entered into for
the sole and exclusive benefit of the DK Lender Group and the Secured Agreement
Obligee Group, and their respective successors and assigns, and not for the
benefit of the Company or any Subsidiary of the Company or any Person claiming
by, through, or under the Company or any Subsidiary of the Company or any other
Person.
(iv) If a DK Event of Default exists
that is premised solely on the existence of an Anglo American Event of Default,
and if such Anglo American Event of Default is cured on a timely basis, waived,
or rescinded, then that DK Event of Default likewise automatically shall be
cured, waived, or rescinded. The immediately foregoing sentence notwithstanding,
if, at the time of such cure, waiver, or rescission, other DK Events of Default
also exist that are not premised solely on the existence of an Anglo American
Event of Default, such other DK Events of Default shall not automatically be
cured, waived, or rescinded pursuant to the provisions of the immediately
foregoing sentence; provided that this sentence shall not limit any right, if
any, of the Company or any Subsidiary to cure such other DK Events of Default,
or cause them to be rescinded, elsewhere provided for in this Agreement, in the
DK Loan Documents and related Secured Debt Documents, or pursuant to applicable
law. If the maturity of the DK Loan Obligations or any of them has been
accelerated, and if, thereafter, all existing DK Events of Default have been
cured, waived, or rescinded, and all amounts that then would have been due the
DK Lenders, had no acceleration occurred, have been paid in full, then such
acceleration automatically shall be rescinded and the originally scheduled
maturity of the DK Loan Obligations automatically shall be reinstated as if the
prior acceleration never had occurred. If the Collateral Agent on behalf of the
DK Lenders is taking Enforcement Action against Collateral in accordance with
the terms and provisions of this Agreement, premised on the existence of one or
more Events of Default, and if all such Events of Default are cured, waived, or
rescinded, then the Collateral Agent on behalf of the DK Lenders promptly shall
suspend further Enforcement Action to the extent that it may practicably do so
without incurring liability and without breaching enforceable commitments it has
already entered into in connection with such Enforcement Action (such as, by way
of illustration, but not by way of limitation, enforceable agreements to dispose
of Collateral). The provisions of this SECTION 2.11(b)(iv) shall not be
applicable during the pendency of an Insolvency or Receivership Proceeding,
other than an involuntary
37
proceeding under the United States Bankruptcy Code in which no order for relief
has been entered. This paragraph is entered into for the sole and exclusive
benefit of the DK Lender Group and the Anglo American Lender Group, and their
respective successors and assigns, and not for the benefit of the Company or any
Subsidiary of the Company or any Person claiming by, through, or under the
Company or any Subsidiary of the Company or any other Person.
(v) If an Anglo American Event of
Default exists that is premised solely on the existence of a Secured Agreement
Event of Default, and if such Secured Agreement Event of Default is cured on a
timely basis, waived, or rescinded, then that Anglo American Event of Default
likewise automatically shall be cured, waived, or rescinded. The immediately
foregoing sentence notwithstanding, if, at the time of such cure, waiver, or
rescission, other Anglo American Events of Default also exist that are not
premised solely on the existence of a Secured Agreement Event of Default, such
other Anglo American Events of Default shall not automatically be cured, waived,
or rescinded pursuant to the provisions of the immediately foregoing sentence;
provided that this sentence shall not limit any right, if any, of the Company or
any Subsidiary to cure such other Anglo American Events of Default, or cause
them to be rescinded, elsewhere provided for in this Agreement, in the Anglo
American Loan Documents and related Secured Debt Documents, or pursuant to
applicable law. If the maturity of the Anglo American Loan Obligations or any of
them has been accelerated, and if, thereafter, all existing Anglo American
Events of Default have been cured, waived, or rescinded, and all amounts that
then would have been due the Anglo American Lenders, had no acceleration
occurred, have been paid in full, then such acceleration automatically shall be
rescinded and the originally scheduled maturity of the Anglo American Loan
Obligations automatically shall be reinstated as if the prior acceleration never
had occurred. If the Collateral Agent on behalf of the Anglo American Lenders is
taking Enforcement Action against Collateral in accordance with the terms and
provisions of this Agreement, premised on the existence of one or more Events of
Default, and if all such Events of Default are cured, waived, or rescinded, then
the Collateral Agent on behalf of the Anglo American Lenders promptly shall
suspend further Enforcement Action to the extent that it may practicably do so
without incurring liability and without breaching enforceable commitments it has
already entered into in connection with such Enforcement Action (such as, by way
of illustration, but not by way of limitation, enforceable agreements to dispose
of Collateral). The provisions of this SECTION 2.11(b)(v) shall not be
applicable during the pendency of an Insolvency or Receivership Proceeding,
other than an involuntary proceeding under the United States Bankruptcy Code in
which no order for relief has been entered. This paragraph is entered into for
the sole and exclusive benefit of the Anglo American Lender Group and the
Secured Agreement Obligee Group, and their respective successors and assigns,
and not for the benefit of the Company or any Subsidiary of the Company or any
Person claiming by, through, or under the Company or any Subsidiary of the
Company or any other Person.
38
(vi) If an Anglo American Event of
Default exists that is premised solely on the existence of a DK Event of
Default, and if such DK Event of Default is cured on a timely basis, waived, or
rescinded, then that Anglo American Event of Default likewise automatically
shall be cured, waived, or rescinded. The immediately foregoing sentence
notwithstanding, if, at the time of such cure, waiver, or rescission, other
Anglo American Events of Default also exist that are not premised solely on the
existence of a DK Event of Default, such other Anglo American Events of Default
shall not automatically be cured, waived, or rescinded pursuant to the
provisions of the immediately foregoing sentence; provided that this sentence
shall not limit any right, if any, of any Obligor to cure such other Anglo
American Events of Default, or cause them to be rescinded, elsewhere provided
for in this Agreement, in the Anglo American Loan Documents and related Secured
Debt Documents, or pursuant to applicable law. If the maturity of the Anglo
American Obligations or any of them has been accelerated, and if, thereafter,
all existing Anglo American Events of Default have been cured, waived, or
rescinded, and all amounts that then would have been due the Anglo American
Lenders, had no acceleration occurred, have been paid in full, then such
acceleration automatically shall be rescinded and the originally scheduled
maturity of the Anglo American Obligations automatically shall be reinstated as
if the prior acceleration never had occurred. If the Collateral Agent on behalf
of the Anglo American Lenders is taking Enforcement Action against Collateral in
accordance with the terms and provisions of this Agreement, premised on the
existence of one or more Events of Default, and if all such Events of Default
are cured, waived, or rescinded, then the Collateral Agent on behalf of the
Anglo American Lenders promptly shall suspend further Enforcement Action to the
extent that it may practicably do so without incurring liability and without
breaching enforceable commitments it has already entered into in connection with
such Enforcement Action (such as, by way of illustration, but not by way of
limitation, enforceable agreements to dispose of Collateral). The provisions of
this SECTION 2.11(b)(vi) shall not be applicable during the pendency of an
Insolvency or Receivership Proceeding, other than an involuntary proceeding
under the United States Bankruptcy Code in which no order for relief has been
entered. This paragraph is entered into for the sole and exclusive benefit of
the DK Lender Group and the Anglo American Lender Group, and their respective
successors and assigns, and not for the benefit of the Company or any Subsidiary
of the Company or any Person claiming by, through, or under the Company or any
Subsidiary of the Company or any other Person.
(c) NOTICE OF SALE. The Secured Parties each
agree to give the other written notice of the time and place of any public sale
or the time after which any private sale or other intended disposition is to be
made by any of them of any Collateral which is not Real Property. This agreement
is intended, in part, to constitute a request for notice and a written notice of
a claim by each party hereto to the other of an interest in the Collateral in
accordance with the provisions of Sections 9-504 and 9- 505 of the Uniform
Commercial Code; PROVIDED, HOWEVER, that, to the extent permitted
39
by law, no Secured Party shall suffer any liability whatsoever for any failure
(other than a wilful failure) to send such notification.
(d) NOTICES TO OTHER SECURED PARTIES. Subject to
SECTION 2.11(a) hereof, each Secured Party shall endeavor, in good faith, to
provide each other Secured Party with notice (in accordance with the notice
provisions hereof) of the acceleration of its respective Obligations; PROVIDED,
HOWEVER, that no Secured Party shall suffer any liability whatsoever for any
failure (other than a wilful failure) to send such notification.
(e) NOTICES PRIOR TO COMMENCING CERTAIN
ENFORCEMENT ACTIONS. Anything herein to the contrary notwithstanding, but
subject nonetheless to the limitations on Enforcement Actions imposed under
Section 2.11(a) above, (i) the Secured Agreement Obligee Group shall not take
any Enforcement Action against the Collateral or the Notes without giving at
least ten (10) Business Days prior written notice to the DK Representative and
the Anglo American Representative, and (ii) the Anglo American Lender Group
shall not take any Enforcement Action against the Collateral without giving at
least ten (10) Business Days prior written notice to the DK Representative and
the Secured Agreement Obligee Representative. Any failure to give any such
notice shall not give rise to any rights in favor of the Company or any
Subsidiary of the Company or any Person claiming by, through or under the
Company or any Subsidiary of the Company.
2.12 WAIVER OF MARSHALING. Each party to this Agreement
hereby waives any right to require another party hereto to marshal any security
or collateral or otherwise to compel another party hereto to seek recourse
against or satisfaction of the indebtedness owed to it from one source before
seeking recourse or satisfaction from another source.
2.13 CREDIT FOR REMITTED COLLATERAL PROCEEDS. For
purposes of the allocation of proceeds of Collateral pursuant to SECTION 2.2,
Obligations owed to a Secured Party shall be deemed increased to include any
amounts by which such Obligations were reduced as a result of the receipt of
proceeds of Collateral that the Secured Party has remitted to the Collateral
Agent for payment or distribution to another Secured Party in accordance with
the terms hereof.
2.14 EFFECT OF DISPOSITIONS OF COLLATERAL ON JUNIOR
LIENS. The parties agree that (a) any collection, exchange, sale, or other
disposition of Collateral comprising Personal Property, Homesite Contracts
Receivable, Commercial Receivables and Subsidiary Stock pursuant to the Uniform
Commercial Code by the party having the senior priority in such Collateral shall
be free and clear of the equal or junior Liens of the other parties hereto in
such Collateral (the proceeds of any such collection, exchange, sale, or other
disposition to be applied in accordance with SECTION
40
2.2), (b) any collection, exchange, sale, or other disposition of Collateral
comprising Personal Property, Homesite Contracts Receivable, Commercial
Receivables and Subsidiary Stock pursuant to the Uniform Commercial Code by a
party that does not have the senior priority Lien in such Collateral shall be
subject to the senior Liens in such Collateral; (c) any foreclosure sale of
Collateral comprising Real Property by the party having the senior priority in
such Collateral shall be free and clear of the equal or junior Liens of the
other parties hereto in such Collateral (the proceeds of any such collection,
exchange, sale, or other disposition to be applied in accordance with SECTION
2.2); and (d) any foreclosure sale of Collateral comprising Real Property by a
party that does not have the senior Lien in such Collateral shall be subject to
the senior Liens in such Collateral.
2.15 MUTUAL CONSENTS. Each of the DK Lenders, the Anglo
American Lenders, and the Secured Agreement Obligees hereby consents to the
execution and delivery by the Company and its Subsidiaries and the Secured
Parties party thereto of the Secured Debt Documents executed and delivered on or
before the date hereof, and to the transactions contemplated thereby.
2.16 PAYMENT SUBORDINATION BY SECURED AGREEMENT OBLIGEES.
Anything in this Agreement or the relevant Secured Debt Documents to the
contrary notwithstanding, except to the extent of the Permitted Payments duly
and properly received by any party prior to the occurrence of a Determination
Event, each member of the Junior Creditor Group hereby covenants and agrees that
the Designated Junior Indebtedness, including the payment of principal, premium,
or interest, including all expenses, fees, interest, indemnification, and other
amounts now or hereafter payable under the relevant Secured Debt Documents by
the Obligors (all of the foregoing, the "SUBORDINATED OBLIGATIONS") shall be
subordinate and junior, to the extent set forth below, and subject in right of
payment to the prior payment in full of all Designated Senior Indebtedness.
Moreover, as between the Anglo American Loan Obligations and the Secured
Agreement Obligations, the Secured Agreement Obligations shall be subordinate
and junior to the extent set forth below, and subject in right of payment to the
prior payment in full of the Anglo American Obligations.
The expression "payment in full" or "paid in full" or any
similar term or phrase when used in any provision of this Agreement with respect
to Designated Senior Indebtedness (or the Anglo American Loan Obligations in
relation to the Secured Agreement Obligations) shall mean the payment in full of
all such Designated Senior Indebtedness in cash (or in other forms of
consideration affirmatively consented to by the holders of such Designated
Senior Indebtedness in their sole discretion), or, in the case of Designated
Senior Indebtedness consisting of contingent obligations in respect of letters
of credit or other reimbursement obligations, the setting apart of cash (or
other property affirmatively consented to by the holders of such Designated
Senior Indebtedness in their sole discretion) sufficient to discharge such
portion of Designated
41
Senior Indebtedness in an account for the exclusive benefit of the holders
thereof, in which account such holders shall be granted by the Obligors a first
priority perfected security interest in a manner reasonably acceptable to such
holders.
(a) If (i) the Obligors shall default in any
payment on any Designated Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for payment or prepayment or by
declaration or acceleration or otherwise, after any applicable grace period (a
"Payment Default Subordination Event") and (ii) the Junior Creditor Group's
Representative(s) shall have received a Payment Default Subordination Notice,
then the Obligors shall not make and no member of the Junior Creditor Group
shall accept or receive from any Obligor any direct or indirect payment (in
cash, assets, securities, by setoff, or otherwise) on account of the Designated
Junior Indebtedness (or on account of the purchase, redemption, or other
acquisition of the Designated Junior Indebtedness) during the Payment Blockage
Period; PROVIDED, HOWEVER, that in the case of any payment on or in respect of
any Designated Junior Indebtedness (other than the redemption or repurchase of
the Preferred Stock pursuant to a Redemption Notice or a Repurchase Notice,
which redemption or repurchase shall not be permitted under any circumstances
until the DK Loan Obligations and the Anglo American Loan Obligations shall have
been paid in full) that would (in the absence of any such Payment Default
Subordination Notice) have been due and payable on any date (a "Scheduled
Payment Date") during such Payment Blockage Period, the provisions of this
SUBSECTION (A) shall not prevent the making of such payment (a "Scheduled
Payment") on or after the date immediately following the termination of such
Payment Blockage Period. The foregoing provisions of this SUBSECTION (A) to the
contrary notwithstanding, the failure by the Obligors to make a Scheduled
Payment on a Scheduled Payment Date during a Payment Blockage Period shall
nevertheless constitute an Event of Default under the relevant Secured Debt
Documents of the Junior Creditor Group, at the time and in the manner provided
therein. Supplementing the foregoing, if the Representative of the Senior
Creditor Group shall fail to send a Payment Default Subordination Notice to the
Representative of the Junior Creditor Group following the occurrence of a
Payment Default Subordination Event, the Anglo American Representative may send
notice to the Representative of the DK Lender requesting the sending of such
notice, whereupon unless the Representative of the Senior Creditor Group shall
elect to send such notice within five (5) days after the receipt of such
request, such Payment Default Subordination Notice may be sent by the Anglo
American Representative.
In the event that, notwithstanding the foregoing, the Obligors
shall make any payment to any member of the Junior Creditor Group prohibited by
the foregoing provisions of this SUBSECTION (A), or if any member of the Junior
Creditor Group shall otherwise receive any direct or indirect payment to which
it is not entitled pursuant to the express terms of this Agreement, then and in
such event such payment shall be segregated by such member and held in trust for
the benefit of and immediately shall be
42
paid over to the Representative of the Designated Senior Indebtedness for
application against the Designated Senior Indebtedness remaining unpaid until
both the DK Loan Obligations and the Anglo American Loan Obligations are paid in
full. Any Payment Default Subordination Notice shall be deemed received by the
Representative(s) of the Junior Creditor Group upon the earlier of: (x) the date
of actual receipt by the Representative(s) of the Junior Creditor Group of such
Payment Default Subordination Notice in writing, or (y) the date on which the
Representative of the Senior Creditor Group shall have telephonically notified
the Representative(s) of the Junior Creditor Group of the occurrence of a
Payment Default Subordination Event and indicated that it was sending a written
Payment Default Subordination Notice to the Representative(s) of the Junior
Creditor Group, which such Payment Default Subordination Notice may be sent by
messenger, overnight courier service, telefacsimile, or certified mail return
receipt requested, but if such written Payment Default Subordination Notice is
not received by the Representative(s) of the Junior Creditor Group within five
(5) Business Days of the date of the telephonic notice then such Payment Default
Subordination Notice shall be deemed never to have been given.
(b) Except under circumstances when the terms of
SUBSECTIONS (a) OR (c) are applicable, if (i) there shall occur an Event of
Default under any provision of the relevant Secured Debt Documents (a
"Non-Payment Default Subordination Event"), and (ii) the Junior Creditor Group's
Representative(s) shall have received a Non-Payment Default Subordination
Notice, then the Obligors shall not make and no member of the Junior Creditor
Group shall accept or receive from any Obligor any direct or indirect payment
(in cash, assets, securities, by setoff, or otherwise) on account of the
Designated Junior Indebtedness (or on account of the purchase, redemption, or
other acquisition of the Designated Junior Indebtedness) during the Non-Payment
Blockage Period; PROVIDED, HOWEVER, that in the case of any Scheduled Payment on
or in respect of any Designated Junior Indebtedness (other than the redemption
or repurchase of the Preferred Stock pursuant to a Redemption Notice or a
Repurchase Notice, which redemption or repurchase is prohibited under the terms
of the DK Loan Documents and the Anglo American Loan Documents until the
Designated Senior Indebtedness shall have been paid in full) that would (in the
absence of any such Non-Payment Default Subordination Notice) have been due and
payable on any Scheduled Payment Date during such Non-Payment Blockage Period,
the provisions of this SUBSECTION (b) shall not prevent the making of such
Scheduled Payment on or after the date immediately following the termination of
such NonPayment Blockage Period. Supplementing the foregoing, if the
Representative of the Senior Creditor Group shall fail to send a Non-Payment
Default Subordination Notice to the Representative of the Junior Creditor Group
following the occurrence of a NonPayment Default Subordination Event, the Anglo
American Representative may send notice to the Representative of the DK Lender
requesting the sending of such notice, whereupon unless the Representative of
the Senior Creditor Group shall elect to send
43
such notice within five (5) days after the receipt of such request, such
Non-Payment Default Subordination Notice may be sent by the Anglo American
Representative.
In the event that, notwithstanding the foregoing, the Obligors
shall make any payment to any member of the Junior Creditor Group prohibited by
the foregoing provisions of this SUBSECTION (b), or if any member of the Junior
Creditor Group shall otherwise receive any direct or indirect payment to which
it is not entitled pursuant to the express terms of this Agreement, then and in
such event such payment shall be segregated by such member and held in trust for
the benefit of and immediately shall be paid over to the Representative of the
Designated Senior Indebtedness for application against the Designated Senior
Indebtedness remaining unpaid until the DK Loan Obligations and the Anglo
American Loan Obligations are paid in full. Any NonPayment Default Subordination
Notice shall be deemed received by the Representative(s) of the Junior Creditor
Group upon the earlier of: (x) the date of actual receipt by the
Representative(s) of the Junior Creditor Group of such NonPayment Default
Subordination Notice in writing, or (y) the date on which the Representative of
the Senior Creditor Group shall have telephonically notified the
Representative(s) of the Junior Creditor Group of the occurrence of a
Non-Payment Default Subordination Event and indicated that it was sending a
written Non-Payment Default Subordination Notice to the Representative(s) of the
Junior Creditor Group, which such Non-Payment Default Subordination Notice may
be sent by messenger, overnight courier service, telefacsimile, or certified
mail return receipt requested, but if such written Non-Payment Default
Subordination Notice is not received by the Representative(s) of the Junior
Creditor Group within five (5) Business Days of the date of the telephonic
notice then such Non-Payment Default Subordination Notice shall be deemed never
to have been given.
(c) In the event of the institution of any
Insolvency or Receivership Proceeding relative to any of the Obligors, then (i)
all Designated Senior Indebtedness shall first be paid in full before any direct
or indirect payment or distribution is made by or on behalf of the Obligors on
the Subordinated Obligations; (ii) any payment or distribution of any kind or
character, whether in cash, property or securities, by set-off or otherwise, to
which the Junior Creditor Group would be entitled but for the provisions of this
SUBSECTION (c) shall be paid or delivered by the Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver, a liquidating
trustee, or otherwise, directly to the Representative of the Senior Creditor
Group, to the extent necessary to make payment in full of all Designated Senior
Indebtedness remaining unpaid; and (iii) no vote by the Junior Creditor Group in
respect of its claims with respect to the Obligations, and no exercise of rights
and remedies by the Junior Creditor Group, shall be in contravention of any
express provision of this Agreement, the provisions of which shall continue to
be applicable throughout the course of any such Insolvency or Receivership
Proceeding. In the event that, notwithstanding the foregoing provisions of this
SUBSECTION (c) the Junior Creditor
44
Group shall have received any such payment or distribution of any kind or
character, whether in cash, property or securities, by setoff or otherwise,
before all Designated Senior Indebtedness is paid in full, then and in such
event such payment or distribution shall be segregated and held in trust for the
benefit of and immediately shall be paid over to the Representative of the
Senior Creditor Group for application to the payment of all Designated Senior
Indebtedness remaining unpaid until all such Designated Senior Indebtedness
shall have been paid in full. Nothing in this paragraph shall prohibit the
holders of the Designated Junior Indebtedness from receiving and retaining cash,
property, or securities from any Person other than the Obligors with respect to
their claims in any Insolvency or Receivership Proceeding of any Person other
than the Obligors. Notwithstanding any contrary provision of this Agreement, but
without limiting any provision of this Agreement that otherwise expressly would
PERMIT a payment or distribution to be received or retained by a Person, for
purposes of this ARTICLE 2, the words "cash, property, or securities" as used
with respect to distributions to the Junior Creditor Group shall not be deemed
to include, and the Junior Creditor Group shall be entitled to receive and
retain all distributions of, (a) common stock of the Company, (b) preferred
stock of the Company, or (c) debt securities of the Company or any Subsidiary of
the Company or any other Person provided for by a Combined Plan if the following
criteria, as applicable, are satisfied: (A) such stock or securities are
subordinated to the Designated Senior Indebtedness to at least the same extent
as the Designated Junior Indebtedness is subordinated to the Designated Senior
Indebtedness as provided in this SECTION 2.16; (B) any such common stock shall
not be entitled to receive or retain dividends of any Obligor, and shall not be
subject to mandatory redemption or repurchase obligations of any Obligor, other
than dividends payable solely in common stock, until the Designated Senior
Indebtedness is paid in full; (C) any such preferred stock shall not be entitled
to receive or retain dividends of any Obligor, and shall not be subject to
mandatory redemption or repurchase obligations of any Obligor, other than
dividends payable solely in either common stock or preferred stock subject to
the same restrictions as the preferred stock with respect to which such
dividends are paid, and other than mandatory redemption obligations
substantially equivalent to those with respect to the Preferred Stock as to
which any resulting claims or liens are subordinated to those with respect to
the Designated Senior Indebtedness to at least the same extent as the Designated
Junior Indebtedness is subordinated to the Senior Designated Indebtedness as
provided in this SECTION 2.16, until the Designated Senior Indebtedness is paid
in full; (D) any such debt securities shall not by their terms provide for any
payments or amortization to or for the benefit of the holders thereof from the
assets or properties of any Obligor, other than payments solely in common stock
or preferred stock of the type described above in the foregoing CLAUSES (A)
THROUGH (C), prior to the time that the Designated Senior Indebtedness is
scheduled to be paid in full pursuant to the terms of the Combined Plan or any
evidences of indebtedness issued pursuant to the Combined Plan to the holders of
the Designated Senior Indebtedness; and (E) no debt securities may be received
or retained by the Junior Creditor Group if the Senior Creditor Group has
received on account of
45
its claims in the Combined Plan any equity of any Person, other than truly DE
MINIMIS amounts of equity, and other than equity the acceptance of which was
affirmatively consented to by the Senior Creditor Group in its sole discretion.
(d) If the Junior Creditor Group does not file
legally sufficient proof(s) of claim (or the equivalent thereof), in their
legally required form, with respect to their claims (including, for all purposes
of this subsection (d), with respect to any interests included within the
Designated Junior Indebtedness) subject to the subordination provisions of this
Agreement, in any Insolvency or Receivership Proceeding of any of the Obligors,
prior to 15 days before the expiration of time to file such proof of claim (or
the equivalent thereof), then the Representative of the Senior Creditor Group
shall have the right (but not the obligation) in such proceeding, and hereby
irrevocably is appointed lawful attorney of the Junior Creditor Group for the
purpose of enabling the Representative of the Senior Creditor Group to file and
prosecute such proof of claim (or the equivalent thereof), and collect, receive
and give receipt for the payments and distributions in respect of the Designated
Junior Indebtedness that are made in such proceeding and that are required to be
paid or delivered to the Senior Creditor Group as provided in SUBSECTION (c),
and to prove all claims therefor, to execute and deliver all documents in such
proceeding, and to pursue the rights and remedies respecting such claims
(including the right to vote in connection with one or more proposed plans of
reorganization), in each case, in name of the Junior Creditor Group or otherwise
in respect of such claims, as the Representative of the Senior Creditor Group
reasonably may determine to be necessary or appropriate, PROVIDED, THAT, the
Representative of the Senior Creditor Group shall act in a commercially
reasonable manner and shall notify the Representative(s) of the Junior Creditor
Group prior to commencing the first of any such actions. The Representative of
the Senior Creditor Group shall be entitled to take any of the actions specified
in this SUBSECTION (d) for the benefit of the Senior Creditor Group.
(e) Anything in CLAUSES (a), (b) OR (c) of this
SECTION 2.16 to the contrary notwithstanding, no Member of the Junior Creditor
Group shall be entitled to receive or retain from or for the account of any
Obligor any payment of principal with respect to the Anglo American Loan
Obligations, the Notes or the Secured Agreement Obligations (including, without
limitation, any payment for or in respect of the redemption or repurchase of the
Preferred Stock or dividends thereon (other than dividends in the form of common
stock or preferred stock if all of the criteria in clauses (A) through (E) of
Section 2.16(c) are satisfied)), or any Extraordinary Reimbursement Payment with
respect to the Anglo American Loan Obligations or the Secured Agreement
Obligations, prior to payment in full of the Designated Senior Indebtedness,
without the prior written consent of the Representative of the Senior Creditor
Group, which the Representative of the Senior Creditor Group may grant or
withhold in its sole discretion.
46
In the event that, notwithstanding the foregoing, any Anglo
American Lender or Secured Agreement Obligee shall receive any payment from or
for the account of any Obligor prohibited by the foregoing provisions of this
SUBSECTION (e), then and in such event such payment shall be segregated by such
recipient and held in trust for the benefit of the DK Lender Group and
immediately shall be paid over to the DK Representative for application against
the DK Loan Obligations remaining unpaid until such DK Loan Obligations are paid
in full.
No right of the Senior Creditor Group to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any of the Obligors or by any
non-compliance by any of the Obligors with the terms, provisions, and covenants
of this Agreement or the relevant Secured Debt Documents, regardless of any
knowledge thereof the Senior Creditor Group may have or be otherwise charged
with.
Without in any way limiting the generality of the foregoing
paragraph, the Senior Creditor Group may, at any time and from time to time,
without the consent of or notice to the Junior Creditor Group, without incurring
responsibility and without impairing or releasing the subordination provided in
this SECTION 2.16 or the obligations to the Senior Creditor Group, do any one or
more of the following (so long as the taking of such actions or omissions are
not otherwise prohibited pursuant to Section 2.9): (a) change the manner, place
or terms of payment or extend the time of payment of, or renew, amend, modify,
or alter, any Designated Senior Indebtedness or any instrument evidencing the
same to the extent in respect of such Designated Senior Indebtedness, or any
agreement evidencing, governing, creating, guaranteeing or securing any
Designated Senior Indebtedness to the extent in respect of such Designated
Senior Indebtedness; (b) sell, exchange, release, or otherwise deal with any
property pledged, mortgaged or otherwise securing Designated Senior Indebtedness
on which the Liens of the Senior Creditor Group has priority over the Liens of
the Junior Creditor Group thereon; (c) release any Person liable in any manner
for the collection of Designated Senior Indebtedness; (d) fail or delay in the
perfection of Liens on Collateral securing the Designated Senior Indebtedness,
and (e) exercise, waive or refrain from exercising any rights against any of the
Obligors in respect of the Designated Senior Indebtedness or any of the
Collateral.
The provisions of this SECTION 2.16 are for the purpose of
defining the relative rights of the Senior Creditor Group on the one hand, and
the Junior Creditor Group on the other hand, and nothing herein shall impair, as
between any of the Obligors and the Junior Creditor Group, the obligation of
such Obligor, which is unconditional and absolute, to pay to the Junior Creditor
Group the principal thereof and premium, if any, and interest thereon in
accordance with their terms and the provisions hereof, nor, except as expressly
set forth in this SECTION 2.16 or in SECTION 2.11 or elsewhere in this Agreement
solely for the benefit of the Senior
47
Creditor Group, shall anything herein prevent the Junior Creditor Group from
exercising all remedies otherwise permitted by applicable law or hereunder upon
default hereunder or under the relevant Secured Debt Documents (including the
right to demand payment and xxx for performance hereof and of the relevant
Secured Debt Documents and to accelerate the maturity thereof as provided
therein), subject to the rights, if any, of the Senior Creditor Group under this
SECTION 2.16 and/or under SECTION 2.11 or elsewhere in this Agreement.
If a claim is made upon any member of the Senior Creditor
Group for repayment or recovery of any amount (a "Voidable Transfer") on account
of any Designated Senior Indebtedness under any state or federal law, whether by
reason of preference, fraudulent conveyance, or otherwise and if member of the
Senior Creditor Group repays all or a portion of such amounts by reason of (a)
any judgment, decree, or order of any court or administrative body having
jurisdiction over such member of the Senior Creditor Group, or (b) any
settlement or compromise of any claim effected by such member of the Senior
Creditor Group based upon the reasonable advice of counsel, then, as to the
amount that has been repaid, the provisions of this SECTION 2.16 automatically
shall be reinstated and restored and the amount so repaid shall constitute
Designated Senior Indebtedness entitled to the benefits of this SECTION 2.16 as
of the date first received as if such Voidable Transfer never had been made. The
foregoing provisions of this SECTION 2.16 shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become members of the Senior
Creditor Group holding Designated Senior Indebtedness, and such provisions are
made for the benefit of, and may be enforced directly by, members of the Senior
Creditor Group, who hereby are expressly stated to be intended beneficiaries of
this SECTION 2.16.
Any other provision of this Agreement to the contrary
notwithstanding, upon payment by any Secured Creditor (the "Paying Secured
Creditor") to any other Secured Creditor (the "Payee Secured Creditor") of any
Designated Senior Indebtedness pursuant to any of the provisions of this
Agreement, then in addition to any other rights of subrogation that the Paying
Secured Creditor may have by operation of law, the Paying Secured Creditor shall
automatically be subrogated and shall succeed to all of the rights of the Payee
Secured Creditor to receive payments or distributions of assets of the Obligors
with respect to the Designated Senior Indebtedness so paid (and any security
therefor) until all of the Designated Junior Indebtedness shall be paid in full.
For purposes of such subrogation and succession, payments to the Payee Secured
Creditor of any cash, assets, stock or obligations which the Paying Secured
Creditor paid over to the Payee Secured Creditor shall, as between any of the
Obligors, its creditors (other than the Senior Creditor Group), and the Junior
Creditor Group, at the option of the Paying Secured Creditor, be deemed to be a
payment of the Designated Senior Indebtedness or the Designated Junior
Indebtedness and, accordingly, such Paying Secured Creditor shall have rights
under one or the other of such instruments, but not both. The foregoing
notwithstanding, no Secured Agreement Obligee may
48
exercise any of its rights in respect of such subrogation or succession until
the DK Lenders have received payment in full of all DK Loan Obligations and the
Anglo American Lenders have received payment in full of all Anglo American Loan
Obligations, and no Anglo American Lender may exercise any of its rights in
respect of such subrogation or succession until the DK Lenders have received
payment in full of all DK Loan Obligations, and any payments to the Paying
Secured Creditor in respect of the obligations subject to such subrogation or
succession shall be subject to the priorities set forth in Section 2.1 and the
payment provisions of this Agreement.
Anything in this SECTION 2.16 to the contrary notwithstanding,
the Anglo American Lender Group shall not be subject to a Blockage Period unless
the Secured Agreement Obligee Group also is subject to a Blockage Period.
2.17 TERMINATION OF AGREEMENT AS TO SECURED AGREEMENT
OBLIGEE UPON RELEASE OF COLLATERAL. (a) Anything in Section 2.4(a) hereof to the
contrary notwithstanding, the Secured Agreement Obligee may, at its sole and
absolute discretion, exercisable at any time upon delivery of written notice to
the Collateral Agent, the DK Representative, and the Anglo American
Representative, release its claims against the Collateral, the Subsidiaries, the
SP Entities, the Joint Ventures and the property and assets thereof
(collectively, the "Collateral and Subsidiary Claims") and all rights of setoff
under all instruments and documents evidencing or securing the Secured Agreement
Obligations (including, all claims of any kind against the Subsidiaries and SP
Entities under any Guarantees and/or as co-makers of that certain Secured
Evidence of Joint and Several Repurchase Obligation dated June 24, 1997 made by
the Company and certain of the Subsidiaries and SP Entities for the benefit of
AP-AGC, LLC) and its Lien upon the Collateral (whether voluntarily or
involuntarily as a result of the commencement of a proceeding under the United
States Bankruptcy Code), whereupon upon the receipt by the Representative of the
Senior Creditor Group of evidence that all Guarantees, notes and other security
documents of the Company, the Subsidiaries and the SP Sub Entities in favor of
the Secured Agreement Obligee have been irrevocably terminated and all
mortgages, pledges and Uniform Commercial Code financing statements of the
Company, the Subsidiaries and the SP Sub Entities in favor of the Secured
Agreement Obligee have been released to the reasonable satisfaction of the DK
Loan Representative and the Anglo American Representative, the provisions of
this Agreement, including, without limitation, the provisions of Sections 2.3
(except as provided in Section 2.17(c) below), 2.9, 2.11 and 2.16, shall become
null and void and of no further force and effect as they relate to the Secured
Agreement Obligee (except as provided in Section 2.16(c)); provided that this
Agreement shall continue in effect, and the Collateral Agent, the DK Lenders and
the Anglo American Lenders shall be entitled to rely upon the terms and
provisions of this Agreement with respect to their respective rights and
obligations theretofore and thereafter accruing, and no such termination shall
affect or impair any rights theretofore accrued and inuring to the benefit of
the Collateral Agent, the DK Lenders and/or the Anglo
49
American Lenders against each other or the Secured Agreement Obligees in respect
of matters or events arising prior to such termination, and no such termination
shall excuse any breach of this Agreement theretofore occurring. If and to the
extent the Secured Agreement Obligee shall so elect to release and terminate its
Collateral and Subsidiary Claims, rights of setoff and Lien upon the Collateral,
as aforesaid, or if, as a result of the commencement of a proceeding under the
United States Bankruptcy Code, the Collateral and Subsidiary Claims, rights of
setoff and Lien of the Secured Agreement Obligee shall be so released and
terminated to the reasonable satisfaction of the DK Loan Representative and the
Anglo American Loan Representative, then and in either such event (each, a "Lien
Release Event"), neither the Collateral Agent, any DK Lender, nor any Anglo
American Lender shall thereafter allege that the Secured Agreement Obligee is
not entitled to proceed as an unsecured creditor of the Company based upon the
existence of this Agreement or upon the Secured Agreement Obligee's prior Lien.
(b) In no event shall any party hereto
institute, or join as a party in the institution of or knowingly finance or
otherwise assist in the commencement or prosecution of, any action, suit or
proceeding contesting in any manner, or raising any defense to, the validity or
enforceability of any unsecured claim of the Secured Agreement Obligees against
the Company arising out of the redemption or repurchase of the Preferred Stock,
following notice to the Collateral Agent, the DK Representative and the Anglo
American Representative of the occurrence of a Lien Release Event.
(c) Notwithstanding any release of Lien and the
termination of this Agreement as to the Secured Agreement Obligee upon or by
reason of a Lien Release Event, the provisions of Section 2.3 (to the extent of
the obligation to disgorge or pay over any payment or any transfer received in
violation of any provision of this Agreement prior to the occurrence of the Lien
Release Event), Sections 2.4(b) and 2.4(c), Section 2.7 (to the extent any such
payment to the Secured Agreement Obligee results from a Dividend declared by the
Company's Board of Directors at a time when any director, employee or designee
of Secured Agreement Obligee was serving as a director on the Board of Directors
of the Company), Section 2.18 (to the extent any such payment to the Secured
Agreement Obligee was made at a time when any director, employee or designee of
Secured Agreement Obligee was serving as a director on the Board of Directors of
the Company) and Section 4.14 hereof shall survive such release and termination
and shall remain in effect until the payment in full of the Designated Senior
Indebtedness.
(d) If at the time that the Collateral Agent
shall be required to disburse any proceeds of the Collateral to any of the
Secured Parties pursuant to this Agreement, the Lien of the Notes shall be
determined not to have been perfected, then and in that event the provisions of
this Agreement shall become null and void and of no
50
further force and effect as they relate to the Notes and the Secured Agreement
Obligee may proceed as an unsecured creditor of the Company with respect
thereto; provided that the surviving provisions identified in subsection 2.17(c)
above in the case of a Lien Release Event shall similarly survive in respect of
the payment of any portion of the proceeds of the Collateral on the Notes and
the Collateral Agent, the DK Lenders and the Anglo American Lenders shall be
entitled to rely upon the terms and provisions of this Agreement with respect
thereto.
2.18 PAYMENTS ON NOTES. Anything herein to the contrary
notwithstanding, no payment of other than current interest and the 20% Profits
Interest (as defined in the Revolving Loan Agreement) may be made on the Notes
under any circumstances until the DK Loan Obligations and the Anglo American
Loan Obligations shall have been paid in full.
SECTION 3. COLLATERAL AGENCY PROVISIONS
3.1 DECLARATION OF AGENCY. The Secured Parties hereby
appoint the Collateral Agent as administrative agent of the Secured Parties with
respect to the proceeds of all Collateral, and as in accordance with the
provisions of this Agreement. The Collateral Agent hereby declares and agrees
that it holds and will hold as agent for the Secured Parties under this
Agreement all sums and property received by the Collateral Agent pursuant to
this Agreement (such sums and property are hereinafter referred to as the
"AGENCY FUNDS"), under and subject to the conditions set forth in this SECTION 3
and for the benefit of the Secured Parties as provided herein. The Company and
its Subsidiaries and Secured Parties each hereby agree that all of the
Obligations and rights to payment set forth in clauses "First" through and
including "Fifth" of SECTION 2.2 hereof are to be secured by the Agency Funds
and that all of the Agency Funds are to be administered by the Collateral Agent,
subject to the further covenants, conditions, uses and purposes set forth in
this SECTION 3. X.X. Xxxxxxxx & Co., LLC hereby acknowledges that it has
succeeded as Collateral Agent and accepts such appointment, and, by its
acknowledgment hereto, The Bank of New York acknowledges that it has resigned as
the SP Sub Collateral Agent (as defined in the Old Intercreditor Agreement). The
parties hereto waive any notice requirement in connection with such resignation
and succession, and hereby expressly consent thereto.
3.2 GENERAL AUTHORITY OF THE COLLATERAL AGENT. The
Collateral Agent and any officer or agent thereof may, from time to time in the
Collateral Agent's discretion, take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to carry out the terms and conditions of this Agreement and accomplish
the purposes hereof and thereof.
51
3.3 REMEDIES NOT EXCLUSIVE.
(a) No remedy conferred upon or reserved to the
Collateral Agent herein is intended to be exclusive of any other remedy or
remedies, but every such remedy shall be cumulative and shall be in addition to
every other remedy conferred herein or now or hereafter existing at law or in
equity or by statute.
(b) No delay or omission by the Collateral Agent
to exercise any right, remedy or power hereunder shall impair any such right,
remedy or power or shall be construed to be a waiver thereof, and every right,
power and remedy given by this Agreement to the Collateral Agent may be
exercised from time to time and as often as may be deemed expedient by the
Collateral Agent.
(c) If the Collateral Agent shall have proceeded
to enforce any right, remedy or power under this Agreement and the proceeding
for the enforcement thereof shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Collateral Agent, then the
Collateral Agent and the Secured Parties shall, subject to any determination in
such proceeding, severally and respectively be restored to their former
positions and rights hereunder and in all other respects, and thereafter all
rights, remedies and powers of the Collateral Agent shall continue as though no
such proceeding had been taken.
(d) All rights of action and of asserting claims
upon or under this Agreement may be enforced by the Collateral Agent without the
possession of any instrument evidencing any Obligation or the production thereof
at any trial or other proceeding relative thereto, and any suit or proceeding
instituted by the Collateral Agent shall be brought in its name as Collateral
Agent and any recovery of judgment shall be administered as part of the Agency
Funds.
3.4 LIMITATION ON COLLATERAL AGENT'S DUTY IN RESPECT OF
COLLATERAL. Beyond their duties as to the custody thereof expressly provided
herein and to account to the Secured Parties for moneys and other property
received by it hereunder, the Collateral Agent shall not have any duty to the
Company or any Subsidiary or to the Secured Parties as to any Collateral, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.
3.5 COMPENSATION AND EXPENSES. By its acknowledgment
below, the Company agrees to pay, or cause the Subsidiaries to pay, from time to
time upon demand, all of the reasonable fees, costs and expenses of any kind or
nature whatsoever of the Collateral Agent (including, without limitation, the
reasonable fees and disbursements of its subagents (as hereinafter defined),
counsel and such special counsel, accountants or other experts as the Collateral
Agent elects to retain, in each case determined on the basis of hourly charges
at normal hourly rates) incurred or
52
required to be advanced in connection with the preservation, protection or
defense of the Collateral Agent's rights under this Agreement and in and to the
Agency Funds. If, after demand, the Company or Subsidiaries fail to pay such
fees, costs and expenses, the Secured Parties, on a pro rata basis based upon
their respective shares of the Obligations, agree to make such payment to the
Collateral Agent; PROVIDED that, to the extent that such fees, costs and
expenses can be reasonably allocated to Collateral in which particular Secured
Parties have a senior lien, or to actions taken on behalf of particular Secured
Parties, the Collateral Agent shall collect such amounts only from such Secured
Parties, among themselves on a pro rata basis, based on their respective shares
of the Obligations owed to such Secured Parties. No payment of fees, costs, or
expenses by a Secured Party, pursuant to SECTION 2.2 hereof or otherwise, shall
relieve the Company or any Subsidiary of the Company of liability therefor.
3.6 INDEMNIFICATION.
(i) Each of the Secured Parties agrees to
and does hereby indemnify, hold harmless, and defend the Collateral Agent in its
capacity as such, or any subagent of the Collateral Agent in its capacity as
such (in each case to the extent not reimbursed by the Company and Subsidiaries
or from the Collateral, and without limiting the obligation of the Company and
Subsidiaries to do so), based, except as otherwise provided below, on such
Secured Party's pro rata share of the outstanding Obligations, from and against
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, and disbursements of any kind or nature whatsoever which
are imposed on, incurred by, or asserted against the Collateral Agent in its
capacity as such, or any subagent of the Collateral Agent in its capacity as
such, in any way relating to or arising out of this Agreement or the Secured
Debt Documents, or as a result of any action taken or omitted to be taken by the
Collateral Agent pursuant to the provisions of this Agreement or of the Secured
Debt Documents, unless arising from the gross negligence or willful misconduct
of the Collateral Agent; PROVIDED that, to the extent that such indemnified
amount can be reasonably allocated to Collateral in which particular Secured
Parties have a senior lien, or to actions taken on behalf of particular Secured
Parties, the Collateral Agent shall collect such indemnified amounts only from
such Secured Parties, among themselves on a pro rata basis, based on their
respective shares of the Obligations owed to such Secured Parties.
(ii) The agreements in this SECTION 3.6
shall survive the termination of the other provisions of this Agreement.
3.7 EXCULPATORY PROVISIONS.
(a) The Collateral Agent makes no
representations as to the value or condition of the Agency Funds or any part
thereof, or as to the title of the Company or Subsidiaries thereto or as to the
Collateral, or as to the accuracy,
53
sufficiency, completeness, or truthfulness of any warranty or representation
made by the Company or any Subsidiary thereof, or as to the validity, execution
(except its own execution), enforceability, attachment, perfection, priority,
legality or sufficiency of this Agreement, or the Obligations, or any lien or
security interest in the Collateral, and the Collateral Agent shall incur no
liability or responsibility in respect of any such matters. The Collateral Agent
shall not be responsible for insuring the Collateral or for the payment of
taxes, charges or assessments or discharging the liens upon the Collateral or
otherwise as to the maintenance of the Collateral. The Collateral Agent shall
not have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants, or conditions of this Agreement or any of the
Secured Debt Documents on the part of any Person party thereto or to inspect the
Collateral or any asset of the Company or any Subsidiary thereof, and shall not
have any duty to take actions to perfect liens or security interests, or to
monitor, continue in effect, or renew the perfection thereof, or to file any
continuation statements in connection therewith, and may choose, without
incurring any liability hereunder, not to perfect (or take steps to reperfect or
continue in effect the perfection of) particular liens or security interests if
it deems such perfection not to be appropriate or cost-effective (for example,
by way of illustration but not by way of limitation, if such perfection would be
unduly expensive, complicated, time-consuming, or impractical), or if the
relative value of the affected Collateral is not deemed sufficient to warrant
taking the steps that would be necessary to perfect (or to reperfect or to
continue or monitor perfection), or if the Collateral Agent shall have agreed
with the Company or any Subsidiary thereof to refrain from perfecting a lien or
security interest absent defined conditions (such as the occurrence of an Event
of Default under a Secured Debt Document).
(b) Notwithstanding any other provision of this
Agreement, the Collateral Agent and its subagents shall not be personally liable
for any action taken or omitted to be taken by it or them in accordance with
this Agreement, except for its own gross negligence or willful misconduct.
(c) The Collateral Agent may accept deposits
from, lend money to, and generally engage in any kind of banking or trust
business with the Company and its Subsidiaries as if it were not the Collateral
Agent, but subject always to the terms and provisions of this Agreement.
(d) The Collateral Agent shall not be deemed to
have knowledge of any matter, fact, state of events, or thing, including,
without limitation, the existence or continuance of any Event of Default under
any Secured Debt Document, unless the Collateral Agent has received written
notice thereof from the Company, a Subsidiary of the Company, a Secured Party,
or a Representative, which notice, if it pertains to an Event of Default,
conspicuously shall state that such notice is a "Notice of Default."
54
3.8 DELEGATION OF DUTIES. The Collateral Agent may
execute, exercise, or perform any of the rights, powers, privileges, duties,
responsibilities, or obligations set forth in this Agreement, in any Secured
Debt Document, or pursuant to applicable law, either directly or by or through
agents or attorneys-in-fact (hereinafter "subagents"). Any such subagent when
acting in such capacity and within the scope of its authority shall have all
rights and powers of the Collateral Agent, shall enjoy the full benefits and
protections of all provisions hereof applicable to the Collateral Agent
(including indemnities running to the Collateral Agent), and shall be subject to
any duties of the Collateral Agent hereunder insofar as they specifically
pertain to the rights being exercised by such subagent. To the extent that the
rights, powers, privileges, duties, responsibilities, or obligations of the
Collateral Agent have been delegated hereunder to a subagent, the Collateral
Agent may leave to such subagent the exercise or non-exercise and performance or
non-performance of such rights, powers, privileges, duties, responsibilities,
and obligations; it shall not be the duty or responsibility of the Collateral
Agent to oversee, direct, assist, monitor, evaluate, supervise, consult with, or
report upon or with respect to the actions or inaction of, any subagent in
connection with its exercise or non-exercise or performance or non-performance
of such rights, powers, privileges, duties, responsibilities, or obligations.
The Collateral Agent shall not be responsible for the negligence or misconduct
of any subagents selected by it if such selection itself was without gross
negligence or willful misconduct. The Collateral Agent shall be entitled to
advice of counsel concerning all matters pertaining to its powers and duties.
The parties recognize that a subagent may be legal counsel for the Collateral
Agent or one or more of the Secured Parties, and each party hereto waives any
conflict of interest and the right to disqualify a subagent from acting as legal
counsel for its clients as a result of such subagent acting in the capacity of a
subagent of the Collateral Agent.
3.9 RELIANCE BY COLLATERAL AGENT.
(a) The Collateral Agent may consult with
counsel, accountants or other experts, including counsel, accountants and
experts of the Company, and any opinion of counsel or opinion of accountants or
other experts shall be full and complete authorization and protection in respect
of any action taken, omitted or suffered by it hereunder, except for actions
constituting gross negligence or willful misconduct. The Collateral Agent shall
have the right at any time to seek instructions concerning the administration of
this Agreement from any court of competent jurisdiction.
(b) The Collateral Agent may rely, and shall be
fully protected in acting, upon any resolution, statement, certificate,
instrument, opinion report, notice, request, consent, order, bond or other paper
or document which it has no reason to believe to be other than genuine and to
have been signed or presented by the proper party or parties or, in the case of
cables, telecopies and telexes, to have been
55
sent by the proper party or parties. In the absence of its gross negligence or
willful misconduct, the Collateral Agent may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Collateral Agent and conforming to
the requirements of this Agreement.
(c) The Collateral Agent shall not be under any
obligation to exercise any of the rights or powers vested in the Collateral
Agent by this Agreement or any Secured Debt Document unless the Collateral Agent
shall have been provided indemnity adequate, in the good faith judgment of the
Collateral Agent, to protect the Collateral Agent or its subagents against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind whatsoever which may be incurred
by it in connection therewith, including such reasonable advances as may be
requested by the Collateral Agent. In any event, the Collateral Agent shall not
be required to take any action that would, in its good faith judgment, violate
the terms of this Agreement, the Secured Debt Documents, or applicable law.
(d) The Collateral Agent may treat any Person
believed by it to be the holder of any claim with respect to any Obligation as
the holder thereof until the Collateral Agent receives and accepts a written
notification from such Person or its Representative, notifying the Collateral
Agent of the transfer or assignment of such claim to an assignee, which notice
shall identify the name and address of such assignee, and may treat any Person
believed by it to be the Representative of another Person or class of Persons
holding claims with respect to Obligations as the continuing Representative of
such other Person or class of Persons until the Collateral Agent receives and
accepts a notification from such Person that a new Representative has been
designated for such Person or class of Persons, which notice shall identify the
name and address of such new Representative.
3.10 LIMITATIONS AND DUTIES OF COLLATERAL AGENT.
(a) The Collateral Agent shall be obligated to
perform such duties and only such duties as are specifically set forth in this
Agreement. The Collateral Agent shall not, by reason of any term, provision, or
condition of this Agreement or any Secured Debt Document have a fiduciary
relationship with any Secured Party except to the extent expressly provided
herein, and its only obligation with respect to Collateral shall be as expressly
provided herein, and no implied covenants or obligations shall be read into this
Agreement or any Secured Debt Document against the Collateral Agent.
(b) The Collateral Agent shall not be under any
obligation to take any action which is discretionary with, or is not expressly
directed to be taken by,
56
the Collateral Agent under the provisions hereof or of any Secured Debt Document
except upon the written direction of all of the Secured Parties holding a first
priority lien in the affected Collateral. Subject to all applicable terms,
provisions, and conditions hereof, including, without limitation, SECTION 3.9(c)
hereof, the Collateral Agent shall act on the instructions of the Secured
Parties holding a first priority lien in the affected Collateral, or their
Representative.
3.11 RESIGNATION OF A COLLATERAL AGENT.
(a) The Collateral Agent may at any time resign
as Collateral Agent hereunder by giving thirty (30) days' prior written notice
to the Secured Parties. Upon any such resignation, the retiring Collateral Agent
shall be discharged of the responsibilities hereby created, such resignation to
become effective (i) upon the appointment of a successor Collateral Agent by the
Secured Parties then holding the Designated Senior Indebtedness and (ii) the
acceptance of such appointment by such successor Collateral Agent; PROVIDED that
if a successor Collateral Agent has not been appointed and accepted such
appointment within forty-five (45) days after the Collateral Agent has given the
aforesaid written notice of resignation, the Collateral Agent may cause its
resignation to become effective notwithstanding the absence of a successor
Collateral Agent by assigning its rights and interests directly to the Secured
Parties, as their respective rights, priorities, and interests appear, in
accordance with the provisions of this Agreement, and, thereafter, any
references to the Collateral Agent shall refer to the Secured Parties
themselves, in accordance with their respective rights, priorities, and
interests as set forth herein; PROVIDED, FURTHER, that, notwithstanding any such
resignation, the resigning Collateral Agent shall continue to be entitled to the
benefits of any indemnities provided for herein that run to the benefit of the
Collateral Agent as to any matters that occurred prior to such resignation, or
that thereafter arise out of or are related to any such matters. Anything
hereinabove to the contrary notwithstanding, the Anglo American Representative
shall have the absolute unilateral right to discharge and replace X.X. Xxxxxxxx
& Co., LLC as Collateral Agent hereunder, effective upon and at any time
following the payment in full of the DK Loan Obligations and the return of any
L/C Guarantees (as defined in the Revolving Loan Agreement) or cash collateral
substituted therefor.
(b) If at any time the Collateral Agent shall
resign, or otherwise become incapable of acting, the powers, duties, authority
and title of the predecessor Collateral Agent shall be terminated and canceled
without procuring the resignation of such predecessor and without any other
formality (except as may be required by applicable law) than appointment and
designation of a successor in writing duly acknowledged and delivered to the
predecessor by the Secured Parties. Such appointment and designation shall be
full evidence of the right and authority to make the same and of all the facts
therein recited, and this Agreement shall vest in such successor, without any
further act, deed or conveyance, all the estates, properties,
57
rights, powers, trusts, duties, authority and title of its predecessor,
provided, however, that the predecessor Collateral Agent shall execute whatever
documents or instruments are necessary under applicable law to fully implement
and effectuate the foregoing.
(c) If at any time hereafter the DK Lender
Group, the Anglo American Lender Group, or the Secured Agreement Obligee Group
concludes that the use of a single collateral agent acting for all Secured
Parties with respect to any particular Collateral is no longer an acceptable
arrangement, the parties agree, at the sole expense of the Company, to cooperate
in restructuring the arrangement so that the separate lender groups are
represented by separate collateral agents, subject to intercreditor arrangements
that preserve the subordinations, priorities, and other substantive provisions
hereof as among the Secured Parties, provided that the terms of any such
documents or assignments entered into to facilitate or effect any such splitting
of the collateral agency function shall be reasonably satisfactory in form and
content to each lender group. Until any such replacement documents shall be
executed and delivered, the parties hereto shall remain subject to and bound by
the terms of this Agreement.
3.12 TERMINATION OF AGENCY. Upon (i) receipt by the
Collateral Agent of a written certificate signed by each of the Secured Parties
stating that all of the Obligations and other amounts owing to such Secured
Parties under the applicable Secured Debt Documents and hereunder have been paid
in full, or, in the case of commitments with respect thereto, terminated, and
(ii) payment in full of due and unpaid Collateral Agent's fees and any expenses
related to the termination and release, the Liens in the Agency Funds shall
terminate forthwith and all right, title and interest of the Collateral Agent in
and to the Agency Funds shall revert to the Secured Parties and their respective
successors and assigns.
3.13 ACCEPTANCE OF AGENCY. The Collateral Agent, for
itself and its successors, hereby accepts the agency created by this SECTION 3
upon the terms and conditions hereof.
3.14 BOOKS AND RECORDS. The Collateral Agent will keep
complete and accurate books and records of its activities and will render
periodic accountings to the Secured Parties as they may reasonably request.
3.15 NON-RELIANCE ON THE COLLATERAL AGENT. Each Secured
Party hereby acknowledges that it has, independently of and without reliance
upon the Collateral Agent, or any subagent of the Collateral Agent, and based
upon such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into any transactions to which it is or
may be a party with the Company or any Subsidiary thereof, and it shall,
independently of and without reliance upon the Collateral Agent or any subagent,
and based upon such documents and
58
information as it shall deem appropriate at the time, continue to make its own
independent credit decisions in taking or omitting to take action under or in
connection with the Obligations, this Agreement, or the Secured Debt Documents.
Collateral Agent and its subagents shall not have any duty or responsibility to
provide any Secured Party with any credit or other information concerning the
affairs, financial condition, or business of the Company or any Subsidiary
thereof that may come into their possession.
3.16 NO JOINT VENTURE. Nothing contained in this
Agreement or any Secured Debt Document, and no action taken by any Secured
Party, Representative, or the Collateral Agent or any subagent of the Collateral
Agent, shall be deemed to constitute any group of such Persons to be a
partnership, association, joint venture, or other composite entity.
3.17 GENERAL APPLICABILITY OF COLLATERAL AGENCY
PROVISIONS CONTAINED IN THIS AGREEMENT. The collateral agency provisions
contained in this Agreement, including, without limitation, the provisions of
ARTICLE 3 of this Agreement, shall be generally applicable with respect to all
of the Collateral and with respect to all of the Secured Debt Documents to which
the Collateral Agent is a party or in which a Lien or security interest is
granted to the Collateral Agent. To the extent that any Secured Debt Document
contains collateral agency provisions, such provisions shall be supplemental to
the general provisions contained in this Agreement and shall be construed
consistently herewith to the extent practicable, but any inconsistency between
any Secured Debt Document and this Agreement shall be governed by the provisions
of this Agreement, and no Secured Debt Document shall impose upon the Collateral
Agent any duty, obligation, or responsibility not consistent with any disclaimer
or exculpatory provision contained in this Agreement.
SECTION 4. MISCELLANEOUS
4.1 NOTICES. Except as otherwise expressly provided
herein, all notices, consents, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy) and
shall be deemed to have been duly given or made (i) when delivered by hand or
(if telephone notice is permitted or required) by telephone, (ii) when
transmitted via telecopy (or other facsimile device) to the numbers herein
provided and the receipt of which is confirmed by telephone, (iii) the day
following the day on which the same has been delivered prepaid to a reputable
national overnight air courier service (with appropriate air xxxx or shipping
receipt and confirmation of delivery), or (iv) the fifth (5th) business day
following the day on which the same is deposited in the mail (certified mail,
return receipt requested and postage prepaid) to the applicable address as
provided on Schedule 3 hereof (or such other address as to which any such party
may give written notice to the other parties hereto).
59
4.2 WAIVER. No failure or delay on the part of any
Secured Party in exercising any power or right under this Agreement, shall
operate as a waiver thereof, nor shall any single or partial exercise of any
other power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No waiver or approval by any Secured Party
under this Agreement shall be applicable to subsequent transactions, except as
may be otherwise stated in such waiver or approval.
4.3 NO REPRESENTATIONS; LIMITATION ON LIABILITY. Except
as specifically provided herein, none of the Secured Parties make to any other
Secured Party any representation, or assumes any responsibility, in respect of
the execution, construction or enforcement of any Secured Debt Document, trust
indenture or loan agreement, or any agreement or instrument of security or other
document executed by the Company or its Subsidiaries. Except as a result of the
breach by any Secured Party of any contractual obligation of that Secured Party
arising under this Agreement, none of the Secured Parties shall have any
liability to the other Secured Parties in respect of any Obligation or pursuant
to the terms of this Agreement, except for such Secured Party's own gross
negligence or willful misconduct.
4.4 CONFLICT. To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of any Secured Debt Document, on the other hand, this Agreement shall control
and prevail as among the Secured Parties, and the Secured Debt Documents shall
control and prevail as to the Company and Subsidiaries.
4.5 SUCCESSORS AND ASSIGNS; REPLACEMENT OF CERTAIN LOANS.
(a) This Agreement shall be binding upon and
inure to the benefit of the Secured Parties and their respective successors and
assigns. Supplementing the foregoing, but not in limitation thereof, any Person
who shall hereafter be or become the holder of the Preferred Stock shall be
bound by the limitations on payment of dividends or other distributions on
account of the Preferred Stock (including, without limitation, in respect of the
redemption and repurchase obligations thereunder) provided for in this
Agreement.
(b) If any Person or Persons shall provide a
replacement for the Revolving Loan Commitments (as such amount may be increased
pursuant to SECTION 2.9(a) of this Agreement), on terms and conditions no less
favorable, taken as a whole, to the Company than those for the Revolving Loan
set forth in the DK Loan Documents on the date of replacement, then, provided
that such Person or Persons shall have executed an agreement acknowledging this
Agreement and agreeing to be bound by and to enjoy the benefits of the terms and
conditions hereof in the same manner as the DK Lender Group is bound hereby and
enjoys the benefits hereof from and after the effective date of such replacement
agreement, this Agreement shall be binding upon and
60
inure to the benefit of such Person or Persons and its or their respective
successors and assigns.
(c) If any Person or Persons shall provide a
replacement for the facilities provided for in the Secured Agreement Documents,
on terms and conditions no less favorable, taken as a whole, to the Company and
its Subsidiaries than those for the Senior Note Documents on the date of
replacement, and subordinated to the DK Lender Group and the Anglo American
Lender Group on at least as favorable a basis as the Secured Agreement
Obligations, then, provided that such Person or Persons shall have executed an
agreement acknowledging this Agreement and agreeing to be bound by and to enjoy
the benefits of the terms and conditions hereof in the same manner as the
Secured Agreement Obligee Group is bound hereby and enjoys the benefits hereof,
this Agreement shall be binding upon and inure to the benefit of such Person or
Persons and its or their respective successors and assigns.
(d) If any Person or Persons shall provide a
replacement for the facilities provided for in the Anglo American Loan
Documents, on terms and conditions no less favorable, taken as a whole, to the
Company and its Subsidiaries than those for the Anglo American Loan Documents on
the date of replacement, and subordinated to the DK Lender Group on at least as
favorable a basis as the Anglo American Loan Obligations, then, provided that
such Person or Persons shall have executed an agreement acknowledging this
Agreement and agreeing to be bound by and to enjoy the benefits of the terms and
conditions hereof in the same manner as the Anglo American Lender Group is bound
hereby and enjoys the benefits hereof, this Agreement shall be binding upon and
inure to the benefit of such Person or Persons and its or their respective
successors and assigns.
4.6 AMENDMENTS, WAIVERS, RELEASES, ETC. This Agreement
shall not be amended or otherwise modified without the written consent of the
affected Secured Parties; PROVIDED, HOWEVER, no provision of SECTION 3 hereof
shall be amended without the written consent of the Collateral Agent. The
consent of the Company and Subsidiaries shall not be required in respect of any
amendment, modification, waiver, discharge or termination of any provision of
this Agreement, except SECTION 3.5 to the extent applicable to the Company and
Subsidiaries.
4.7 SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
61
4.8 COUNTERPARTS. This Agreement may be executed by one
or more of the initial parties to this Agreement in any number of separate
counterparts, and all such counterparts taken together shall be deemed to
constitute one and the same instrument. Counterparts may be delivered by
facsimile, provided that any party delivering a counterpart in such manner
promptly thereafter shall deliver an original manually executed counterpart.
4.9 GOVERNING LAW. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with the law of the State of New York
applicable to contracts made and to be performed in the State of New York.
4.10 SECURED PARTIES RIGHTS AS AGAINST THIRD PARTIES.
Nothing contained in this Agreement is intended to affect or limit, in any way
whatsoever, the Liens that each of the parties hereto has in the assets of the
Company and Subsidiaries insofar as the rights of the Company and Subsidiaries
and third parties are involved. The Secured Parties specifically reserve their
respective rights, Liens, and rights to assert Liens as against the Company and
Subsidiaries and any third parties.
4.11 ENTIRE AGREEMENT. This Agreement embodies the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements, understandings and
inducements, whether express or implied, oral or written with respect thereto.
4.12 CONSTRUCTION OF AGREEMENT. The parties hereto hereby
acknowledge that the wording of this Agreement reflects substantial negotiation
among the parties and that all parties participated in the drafting of this
Agreement. Consequently, the parties hereto hereby agree that the rule of CONTRA
PROFERENTUM shall not be applied in the construction of this Agreement.
4.13 RESOLUTION OF CONFLICTING RIGHTS AND REMEDIES.
(a) Prior to the time, if any, that the DK Loan
Obligations have been paid in full, to the extent that the Secured Debt
Documents, as they pertain to the Collateral, may provide conflicting rights and
remedies to the DK Lender Group, the Anglo American Lender Group, and the
Secured Agreement Obligee Group, or may purport to empower each to make
decisions or give directions or instructions to the Collateral Agent, the rights
and remedies of the DK Lender Group shall be paramount to, and shall take
precedence over, those of the Anglo American Lender Group and/or the Secured
Agreement Obligee Group, and the Collateral Agent may rely on directions or
instructions of the DK Representative with respect to the Collateral and
disregard conflicting instructions or directions from the Anglo American
Representative or the Secured Agreement Obligee Representative with respect to
the Collateral.
62
(b) At and after the time, if any, that the DK
Loan Obligations have been paid in full, to the extent that the Secured Debt
Documents, as they pertain to the Collateral, may provide conflicting rights and
remedies to the Anglo American Lender Group and the Secured Agreement Obligee
Group, or may purport to empower each to make decisions or give directions or
instructions to the Collateral Agent, the rights and remedies of the Anglo
American Lender Group shall be paramount to, and shall take precedence over,
those of the Secured Agreement Obligee Group, and the Collateral Agent may rely
on directions or instructions of the Anglo American Representative with respect
to the Collateral and disregard conflicting instructions or directions from the
Secured Agreement Obligee Representative with respect to the Collateral.
4.14 COVENANTS OF THE SECURED AGREEMENT OBLIGEES. As a
material inducement to the entering into of this Agreement by the DK Lenders and
the Anglo American Lenders, the Secured Agreement Obligees hereby covenant and
agree that until the DK Loan Obligations and the Anglo American Loan Obligations
shall have been paid in full, neither the Secured Agreement Obligees nor any of
its or their directors, employees or designees serving as directors on the Board
of Directors of the Company from time to time, shall vote for or approve (by
Board resolution or action at a duly convened Board meeting) the declaration or
payment of any dividends on, or cause the Company to make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of all or any portion of
the Preferred Stock or, to the extent it may do so consistent with its fiduciary
duties, the Series B Cumulative Redeemable Convertible Preferred Stock of the
Company (the "Series B Stock") or for the making of any other distributions in
respect thereof, whether in cash or property (other than distributions or
dividends in the form of common stock or preferred stock if all of the criteria
in clauses (A) through (E) of Section 2.16(c) are satisfied) (any such payment
or dividend being hereinafter referred to as a "Dividend") or in obligations of
the Company, any Subsidiary or any SP Entities.
63
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
The DK Lenders:
X.X. XXXXXXXX & CO., LLC, as Agent
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Member
The Anglo American Lenders:
ANGLO AMERICAN FINANCIAL
By:
-----------------------------------------
Name:
Title:
and
GENERAL MOTORS EMPLOYEES GLOBAL
GROUP PENSION TRUST
By: Magten Asset Management Corp., as
attorney-in-fact
By:
--------------------------------------
Name:
Title: Managing Director
64
The Secured Agreement Obligees:
AP-AGC, LLC, a Delaware limited liability company
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxxx
Title: Vice President of Kronus
Property, Inc., the Manager
of AP-AGC, LLC
The Collateral Agent:
X.X. XXXXXXXX & CO., LLC
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Member
65
ACKNOWLEDGMENT BY THE COMPANY AND ITS SUBSIDIARIES
Each of the Company and the undersigned Subsidiaries of the
Company hereby acknowledges the foregoing Intercreditor Agreement, and agrees,
jointly and severally, to be bound by the terms, conditions, and provisions
thereof (including without limitation SECTION 3.5 thereof) applicable to it.
Each of the Company and the undersigned Subsidiaries of the Company agrees that
each Secured Party holding Collateral may serve as bailee for any other Secured
Party and each Secured Party is hereby authorized to turn such Collateral over
to such other Secured Party. The Company further agrees on its own behalf and on
behalf of its Subsidiaries, that the Intercreditor Agreement is solely for the
benefit of the Secured Parties and their successors or assigns and shall not
give the Company, its successors and assigns, or the Company's Subsidiaries or
their successors or assigns, or any other person, any rights vis-a-vis any
Secured Party. The Company hereby consents to the resignation of The Bank of New
York as the SP Sub Collateral Agent (as defined in the Old Intercreditor
Agreement) and the appointment of X.X. Xxxxxxxx & Co., LLC, as the Collateral
Agent, and waives any notice requirements that otherwise might or would be
applicable in connection with such resignation and succession.
The Company and all of the undersigned Subsidiaries hereby
agree that on or after a Determination Event, any and all payments on any
Obligations and/or any Guarantees thereof to the DK Lenders, the Anglo American
Lenders, or the Secured Agreement Obligees (other than payments on Obligations
and/or Guarantees thereof that are identifiable proceeds of Collateral) shall be
made strictly in accordance with the priorities set forth in SECTION 2.16; and,
if any of the DK Lenders, the Anglo American Lenders, or the Secured Agreement
Obligees receives any payment on an Obligation and/or a Guarantee thereof that
is required to be remitted or transferred to the Collateral Agent for
distribution to other Secured Parties pursuant to SECTION 2.7 of the foregoing
Intercreditor Agreement, then the amount of the Obligations held by the Secured
Party receiving such payment from the Company or any Subsidiary shall be deemed
reduced only by the amount of payment on such Obligation and/or Guarantee
66
thereof retained by such Secured Party and the Obligations of the other Secured
Parties receiving distributions from the Collateral Agent pursuant to SECTION
2.7 shall be deemed reduced by the amount of any such distribution.
The Company expressly acknowledges that it may not pay any
Dividend (as defined in Section 4.14 of the foregoing Intercreditor Agreement)
or other distributions on account of the Preferred Stock or the Series B Stock
(including, without limitation, in respect of the redemption and repurchase
obligations thereunder) to the holders of the Preferred Stock or the Series B
Stock pursuant to the terms of the DK Loan Documents and the Anglo American Loan
Documents; PROVIDED, HOWEVER, that the Company may pay "payment in kind"
dividends or common stock dividends to the holders of the Preferred Stock and
Series B Stock, if all of the criteria set forth in clauses (A) through (E) of
Section 2.16(c) of the foregoing Intercreditor Agreement are satisfied.
THE COMPANY:
ATLANTIC GULF COMMUNITIES CORPORATION, a
Delaware corporation
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
SUBSIDIARIES:
AG TITLE CORPORATION, a Florida corporation
ATLANTIC GULF COMMERCIAL REALTY, INC., a
Florida corporation
ATLANTIC GULF COMMUNITIES MANAGEMENT
CORPORATION, a Florida corporation
ATLANTIC GULF COMMUNITIES SERVICE
CORPORATION, a Florida corporation
AGC HOMES, INC., a Florida corporation
ATLANTIC GULF DEVELOPMENT, INC.,
a Florida corporation
ATLANTIC GULF REALTY, INC., a Florida
corporation
COMMUNITY TITLE AGENCY, INCORPORATED,
a Florida corporation
CUMBERLAND COVE, INC., a Tennessee corporation
67
ENVIRONMENTAL QUALITY LABORATORY,
INCORPORATED, a Florida corporation
FIVE STAR HOMES, INC., a Florida corporation
ATLANTIC GULF C.C. CORP., f/k/a/ C.C. VILLAGE
DEVELOPMENT CORPORATION, a Florida
corporation
GDV FINANCIAL CORPORATION, a Florida
corporation
GENERAL DEVELOPMENT ACCEPTANCE
CORPORATION, a Delaware corporation
GENERAL DEVELOPMENT AIR SERVICE, INC.,
a Florida corporation
GENERAL DEVELOPMENT COMMERCIAL CREDIT
CORPORATION, a Florida corporation
ATLANTIC GULF ENGINEERING COMPANY,
a Florida corporation
GENERAL DEVELOPMENT HEADQUARTERS
CORPORATION, a Florida corporation
GENERAL DEVELOPMENT RESORTS, INC.,
a Florida corporation
GENERAL DEVELOPMENT SALES CORPORATION,
a Florida corporation
GENERAL DEVELOPMENT SERVICE
CORPORATION, a Florida corporation
GENERAL DEVELOPMENT UTILITIES, INC.,
a Florida corporation
LAKESIDE DEVELOPMENT OF ORLANDO, INC.,
a Florida corporation
LONGWOOD UTILITIES, INC., a Florida corporation
REGENCY ISLAND DUNES, INC., a Florida
corporation
TOWN & COUNTRY II, INC., a Florida corporation
FRC INVESTMENTS, INC., a Florida corporation
XYZ INSURANCE, INC., a Florida
corporation
AGC CL LIMITED PARTNER, INC., a Florida
corporation
AGC SANCTUARY CORPORATION, a Florida
corporation
AG SANCTUARY OF ORLANDO, INC., a Florida
corporation
ATLANTIC GULF RECEIVABLES CORPORATION,
a Florida corporation
68
ATLANTIC GULF OF TAMPA, INC., a Florida
corporation
ATLANTIC GULF UTILITIES, INC., a Florida
corporation
EQL ENVIRONMENTAL SERVICES, INC., a Florida
corporation
HUNTER TRACE DEVELOPMENT CORPORATION,
a Florida corporation
OCEAN GROVE,INC., a Florida corporation
PANTHER CREEK CORP., a North Carolina
corporation
SABAL TRACE DEVELOPMENT CORPORATION,
a Florida corporation
SUNSET LAKES DEVELOPMENT CORPORATION,
a Florida corporation
WEST BAY CLUB DEVELOPMENT CORPORATION,
f/k/a ESTERO POINTE DEVELOPMENT
CORPORATION, a Florida corporation
WINDSOR PALMS CORPORATION, a Florida
corporation
FOX CREEK DEVELOPMENT CORPORATION,
a Florida corporation
MAPLEWOOD DEVELOPMENT CORPORATION,
a Florida corporation
SUMMERCHASE DEVELOPMENT CORPORATION, a
Florida corporation
AGC-SP, INC., a Delaware corporation
WATERFORD-ORLANDO, INC.,
f/k/a AGC-SP1, INC., a Florida corporation
LAS OLAS TOWER AT RIVER WALK, INC.,
f/k/a AGC-SP2, INC., a Florida corporation
WEST FRISCO DEVELOPMENT CORPORATION,
f/k/a AGC-SP3, INC., a Florida
corporation
AGC-SP4, INC., a Florida corporation
AGC-SP5, INC., a Florida corporation
AG-NTC, INC., a Florida corporation
WEST BAY HOLDING CORPORATION, a Florida
corporation
WEST BAY REALTY, INC., a Florida corporation
ASPEN SPRINGS RANCH HOLDING COMPANY f/k/a
A.G. ASSISTED LIVING, INC., a Florida
corporation
69
ASPEN SPRINGS RANCH, INC., a Colorado
corporation
ASPEN SPRINGS RANCH ACQUISITION
CORPORATION, a Colorado corporation
ATLANTIC GULF ASIA HOLDINGS, N.V., a company
organized under the laws of
Netherland Antilles
ATLANTIC GULF WATER'S EDGE, INC., a Florida
corporation
ATLANTIC GULFSHORE NATURES COVE, INC.,
a Florida corporation
GRAND OAKS DEVELOPMENT CORPORATION,
a Florida corporation
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
70
ACKNOWLEDGMENT BY THE BANK OF NEW YORK
The Bank of New York hereby acknowledges and consents to the
execution, delivery, and performance of the foregoing Intercreditor Agreement,
confirms its resignation as the SP Sub Collateral Agent, and confirms its
ongoing agreement to do such acts and things in connection with the transition
of the Collateral Agent function to X.X. Xxxxxxxx & Co., LLC as are or may be
required by the Old Intercreditor Agreement.
THE BANK OF NEW YORK, by
The Bank of New York Trust
Company of Florida, N.A.,
as its agent
By:
-------------------------
Name:
Title:
SCHEDULE 1
EXCLUDED SUBSIDIARIES
Name Jurisdiction of
Incorporation
--------------------------------------------------------------------------------
Atlantic Gulf Development, Inc. Florida
Atlantic Gulf C.C. Corp., f/k/a
C.C. Village Development Corporation Florida
Community Title Agency, Incorporated Florida
FRC Investments, Inc. Florida
GDV Financial Corporation Florida
General Development Acceptance Corporation Delaware
General Development Air Service, Inc. Florida
General Development Commercial Credit
Corporation Florida
General Development Headquarters
Corporation Florida
General Development Sales Corporation Florida
Atlantic Gulf Engineering Company Florida
XYZ Insurance, Inc. Florida
Fox Creek Development Corporation Florida
General Development Service Corporation Florida
Longwood Utilities, Inc. Florida
Maplewood Development Corporation Florida
Summerchase Development Corporation Florida
1-1
SCHEDULE 2
UNRESTRICTED SUBSIDIARIES
None
2-1
SCHEDULE 3
ADDRESSES FOR NOTICES
The DK Lenders:
DK Acquisition Partners, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
With a copy to:
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
The Anglo American Lenders:
Anglo American Financial
000 Xxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxxxxx
With a copy to:
Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
and
General Motors Employees Global Group Pension Trust
c/o Magten Asset Management Corp.
00 Xxxx 00xx Xxxxxx - 0xx Xxxxx
3-1
New York, New York 10010
with a copy to:
Xxxxxxxx Xxxxxx Xxxxx & Xxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx Xxxxx, Esq.
The Secured Agreement Obligees:
AP-AGC, LLC
c/o Apollo Real Estate Advisors II, L.P.
Two Manhattanville Road
Purchase, New York 10577
Attn: Xxx Xxxxxxxxx
With a copy to:
Apollo Real Estate Advisors II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxxxxx
With a copy to:
Wachtel, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
The Collateral Agent:
X.X. Xxxxxxxx & Co., LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
With a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxxx
3-2
With a copy to:
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
The Company and its Subsidiaries:
Atlantic Gulf Communities Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Chief Financial Officer
With a copy to:
Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx
000 00xx Xx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx, Esq.
3-3