Exhibit 3.9
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT dated as of February 23, 2001, (this
"Agreement") is made by and among Firstar Bank of Minnesota, N.A., solely in its
capacity as trustee under the Indenture (as defined below) and under the
Security Documents (as defined in the Indenture) (the "Trustee") and Foothill
Capital Corporation, a California corporation (the "Credit Facility Lender"), as
lender under the Credit Facility (as defined in the Indenture).
RECITAL
A. Peninsula Gaming Company, LLC, a Delaware limited liability company
("Borrower"), Peninsula Gaming Corp., a Delaware corporation ("PGC" and,
together with Borrower, the "Issuers"), the guarantors named therein (the
"Guarantors") and the Trustee entered into an Indenture, dated as of July 15,
1999 (the "Indenture"), pursuant to which indebtedness was incurred by the
Issuers, the repayment of which is guaranteed by the Guarantors and secured by
security interests in and liens on certain now owned and hereafter acquired
assets and properties described in the Security Documents (the "Indenture
Collateral").
B. As of February 23, 2001, Borrower and the Credit Facility Lender
entered into that certain Loan and Security Agreement (as such may be amended,
restated, supplemented or otherwise modified from time to time after the date
hereof, the "Credit Facility Agreement"), pursuant to which the Credit Facility
Lender agreed, upon the terms and conditions stated therein, to make loans and
advances to, or to issue letters of credit (or guaranties in respect thereof)
for the account of, Borrower, in an aggregate principal and undrawn amount not
to exceed the Maximum Amount (as defined below), the repayment of which is
secured by security interests in and liens on the Indenture Collateral pursuant
to the Credit Facility Agreement and the collateral security documents, vessel
mortgage, instruments and guaranties executed and delivered in connection
therewith by one or more of Borrower and any Guarantor, together with such other
agreements, instruments and certificates entered into in connection with the
Credit Facility Agreement (as such may be amended, restated, supplemented or
otherwise modified from time to time after the date hereof, together with the
Credit Facility Agreement, the "Credit Facility Loan Documents").
C. One of the conditions of the Credit Facility Agreement is that the
priority of the security interests and liens on the Collateral under the Credit
Facility Loan Documents be senior to the security interests in and liens on the
Indenture Collateral in the manner and to the extent provided for in this
Agreement.
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D. The Trustee and the Credit Facility Lender desire to enter into
this Agreement concerning their respective rights with respect to the priority
of their respective security interests in and liens on the Collateral.
E. The terms of the Indenture permit Borrower to enter into the Credit
Facility Agreement and, in connection therewith, authorize and direct the
Trustee to enter into an intercreditor agreement substantially in the form of
this Agreement.
NOW, THEREFORE, the Parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Terms Defined Above and in the Recitals. As used in this
Agreement, the following terms shall have the respective meanings indicated in
the initial paragraph of this Agreement and in the above Recitals:
"Agreement"
"Borrower"
"Credit Facility Lender"
"Credit Facility Agreement"
"Credit Facility Loan Documents"
"Guarantors"
"Indenture"
"Indenture Collateral"
"Maximum Amount"
"Trustee"
Section 1.2 Other Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Collateral" shall mean all of the Indenture Collateral in which the
Credit Facility Lender is granted a security interest or lien to secure the
Credit Facility Indebtedness.
"Credit Facility Indebtedness" shall mean all present and future
Obligations, contingent or otherwise, of Borrower and the Guarantors to the
Credit Facility Lender arising under or pursuant to the Credit Facility Loan
Documents, including, in each case, interest, fees, and expenses accruing after
the initiation of any Insolvency Proceeding (irrespective of whether allowed as
a claim in such proceeding), and including the secured claims of the Credit
Facility Lender in respect of the Collateral in any Insolvency Proceeding.
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"Enforcement Action" shall mean, with respect to any Party, (a)
commencement of any action, whether judicial or otherwise, for the enforcement
of such Party's rights and remedies as a secured creditor with respect to the
Collateral, including commencement of any receivership or foreclosure
proceedings against, or any other sale of, collection on, or disposition of, any
Collateral; or (b) notifying any third party account debtors of Borrower or any
of its subsidiaries to make payment directly to such Party or to any of its
agents or other Persons acting on its behalf.
"Enforcement Event" shall mean the occurrence and continuance of an
"Event of Default" as defined under Section 6.1 of the Indenture.
"Enforcement Event Notice" shall have the meaning ascribed thereto in
Section 3.2.
"Entitled Party" shall have the meaning ascribed thereto in Section
4.1(a).
"Event of Default" shall have the meaning ascribed thereto in the
Credit Facility Agreement.
"Financing Documents" shall mean the Indenture Documents and the
Credit Facility Loan Documents.
"Foreclosure Action" shall mean any action to foreclose upon or
enforce a Lien against any of the Collateral, including (a) commencing judicial
or non-judicial foreclosure proceedings, (b) exercising any rights afforded to
secured creditors in a case under the Bankruptcy Code with respect to the
Collateral, or (c) taking any action under the Bankruptcy Code that directly
relates to or directly affects any such Collateral, other than any such action
that relates to or affects all or substantially all of the property of the
bankruptcy estate.
"Fully Paid" shall mean the payment in cash or cash equivalents in
full of all Obligations (other than indemnity obligations that survive payment
in full) under the Credit Facility Agreement or the Indenture Documents, as the
case may be, and in the case of the Credit Facility Agreement, at such time when
there shall no longer be any obligation to make loans or advances or issue
letters of credit (or guaranties in respect thereof) thereunder and there shall
no longer be any letter of credit (or guaranty in respect thereof) outstanding
thereunder or such letter of credit (or guaranty in respect thereof) shall have
been fully cash collateralized (in accordance with the provisions of the Credit
Facility Agreement).
"Indenture Documents" shall mean the Indenture, the Notes, the
Security Documents and the Registration Rights Agreement, and such other
agreements, instruments and certificates executed and delivered (or issued) by
the Issuers or the Guarantors pursuant to the Indenture, as any or all of the
same may be amended, restated, supplemented or otherwise modified from time to
time.
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"Insolvency Proceeding" shall mean any proceeding for the purposes of
dissolution, winding up, liquidation, arrangement or reorganization of Borrower,
any Guarantor, or any other subsidiary of Borrower, or their respective
successors or assigns, whether in bankruptcy, insolvency, arrangement,
reorganization or receivership proceedings, or upon an assignment for the
benefit of creditors or any other marshaling of the assets and liabilities of
Borrower, any Guarantor, or any other subsidiary of Borrower, or their
respective successors or assigns.
"Lien Priority" shall mean, with respect to any Lien in and to the
Collateral, the order of priority of such Lien as specified in Sections 2.1 and
2.2.
"Maximum Amount" shall mean Indebtedness under the Credit Facility
Loan Documents that the Credit Facility Lender in good faith believes, at the
time such Indebtedness is incurred, Borrower is permitted to incur pursuant to
Section 4.9(a) of the Indenture (together with all interest, fees, and expenses
payable thereon or with respect thereto). In no event may the Maximum Amount
exceed $10,000,000 in principal plus interest, fees and expenses payable thereon
or with respect thereto.
"Party" shall mean any signatory to this Agreement.
"Secured Liabilities" shall mean the Subordinated Lien Indebtedness
and the Credit Facility Indebtedness.
"Subordinated Lien Indebtedness" shall mean all present and future
Obligations, contingent or otherwise, of Borrower and the Guarantors to the
Trustee or Holders arising under or pursuant to the Indenture Documents,
including, in each case, interest, fees and expenses accruing after the
initiation of any Insolvency Proceeding (irrespective of whether allowed as a
claim in such proceeding), and including the secured claims of the Trustee or
the Holders in respect of the Collateral in any Insolvency Proceeding.
"Trigger Date" means the earlier of (a) the date on which an event
contemplated by clause (b) or (c)(i), (ii) or (iii) or (iv) of the definition of
Trigger Event occurs, (ii) the date on which an Enforcement Event Notice is
delivered and (iii) the final maturity date of the Credit Facility Indebtedness
(after giving effect to any extensions granted thereunder).
"Trigger Event" shall mean any of:
(a) the occurrence of an Event of Default,
(b) the acceleration of the maturity of the Credit Facility
Indebtedness by the Credit Facility Lender pursuant to the Credit Facility
Agreement, or
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(c) the commencement of any action or proceeding by the Credit
Facility Lender, whether judicial or otherwise (but excluding demands for
payment or notices of default), for the enforcement of the Credit Facility
Lender's rights and remedies under any of the Credit Facility Loan
Documents, including (i) commencement of any receivership or Foreclosure
Action against or any other sale of, collection on or disposition of any
Collateral, including any notification to third parties to make payment
directly to the Credit Facility Lender, (ii) exercise of any right of
set-off, (iii) commencement of any Insolvency Proceeding, and (iv)
commencement of any judicial action or proceeding against the Borrower or
any Guarantor to recover all or any part of the Credit Facility
Indebtedness.
Section 1.3 Indenture Definitions. All other capitalized terms that are
used but not defined herein shall have the respective meaning indicated in the
Indenture.
Section 1.4 Miscellaneous. All definitions herein (whether set forth herein
directly or by reference to definitions in other documents) shall be equally
applicable to both the singular and the plural forms of the terms defined. The
words "hereof," "herein" or "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Article and section references are to
articles and sections of this Agreement unless otherwise specified. The term
"including" shall mean "including without limitation."
ARTICLE II
LIEN PRIORITY
Section 2.1 Agreement to Subordinate Liens. The Trustee hereby agrees that
the Liens of the Trustee for the benefit of itself and the Holders in and to the
Collateral are and shall be junior to and subordinate in priority to the Liens
of the Credit Facility Lender in and to the Collateral securing the Credit
Facility Indebtedness up to, but not in excess of, the Maximum Amount; provided,
that the rights of the Credit Facility Lender under this Agreement shall be void
and of no further force and effect if, and only to the extent, that the Liens of
the Credit Facility Lender in and to the Collateral are avoided, disallowed, set
aside or otherwise invalidated in any action or proceeding by a court, tribunal
or administrative agency of competent jurisdiction and such avoidance,
disallowance, set aside or other invalidation is permanent and is not later
reversed. The subordination of the Liens of the Trustee for the benefit of
itself and the Holders in and to the Collateral in favor of the Credit Facility
Lender provided for herein shall not be deemed to (a) subordinate the Liens of
the Trustee to the Liens of any other Person or (b) subordinate the Subordinated
Lien Indebtedness to any other Indebtedness of the Borrower or any of the
Guarantors, including,
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the Credit Facility Indebtedness, or (c) subordinate the Liens of the Trustee
for the benefit of itself and the Holders in and to any Indenture Collateral
other than the Collateral.
Section 2.2 Non-Contest; Excluded Assets. Each Party agrees that it will
not attack or contest the validity, perfection, priority or enforceability of
the Liens of the other Party or finance or urge any other Person to do so,
provided that either Party may enforce its rights and privileges hereunder
without being deemed to have violated this provision. Any provision contained in
this Agreement to the contrary notwithstanding, the terms and conditions of this
Agreement shall not apply to any property or assets (including property or
assets that do not constitute Collateral) as to which one Party has a Lien and
as to which the other Party does not have a Lien.
Section 2.3 Exercise of Rights.
(a) The Trustee may exercise, and nothing herein shall constitute a
waiver of, any right it may have at law or equity to receive notice of, or
to commence or join with any creditor in commencing any Insolvency
Proceeding; provided, that the exercise of any such right by the Trustee
shall be (i) subject to the Lien Priority and application of proceeds of
Collateral as provided in Section 3.4 and (ii) subject to the provisions of
Sections 3.1 and 3.2.
(b) Notwithstanding any other provision hereof, the Trustee may make
such demands or file such claims as may be necessary to prevent the waiver
or bar of such claims under applicable statutes of limitations or other
statutes, court orders or rules of procedure.
Section 2.4 Priority of Liens. Irrespective of the order of recording of
mortgages, financing statements, security agreements or other instruments, and
irrespective of the descriptions of Collateral contained in the Financing
Documents, including any financing statements, the Parties agree among
themselves that their respective Liens in the Collateral shall be governed by
the Lien Priority, which shall be controlling in the event of any conflict
between this Agreement and any of the Financing Documents.
ARTICLE III
ACTIONS OF THE PARTIES
Section 3.1 Limitation on Certain Actions. Subject to Section 3.2, until
the earlier of (a) the date on which all Credit Facility Indebtedness is Fully
Paid and (b) the first date following the Trigger Date on which the Maximum
Amount of Credit Facility
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Indebtedness is Fully Paid, the Trustee will not, without the prior written
consent of the Credit Facility Lender, take any Enforcement Action.
Section 3.2 Standstill Period. If an Enforcement Event has occurred and is
continuing, the Trustee, on behalf of the holders of the Notes, may give the
Credit Facility Lender written notice thereof (an "Enforcement Event Notice").
If (a) such Enforcement Event is continuing for more than 180 consecutive days
after the delivery of such Enforcement Event Notice (the "Expiry Date"), (b) the
Credit Facility Lender has not, on or before the Expiry Date, commenced (and
notified the Trustee that the Credit Facility Lender has commenced) one or more
Enforcement Actions, and (c) Borrower or the Guarantor against which the
Trustee's proposed Enforcement Action is to be taken is not the subject of an
Insolvency Proceeding, then the Trustee may, subject to the Lien Priority and
the application of all proceeds of the Collateral in accordance with Section
3.4, take one or more Enforcement Actions. If (i) the Credit Facility Lender has
commenced any Enforcement Action on or prior to the Expiry Date and, at any time
after the Expiry Date, is no longer pursuing one or more Enforcement Actions,
(ii) no Insolvency Proceeding is pending against Borrower or the Guarantor
against which the Trustee's proposed Enforcement Action is to be taken, and
(iii) the Enforcement Event that was the subject of, or existing on the date of,
the Enforcement Event Notice is then continuing, then the Trustee may, subject
to the Lien Priority and the prior application of all proceeds of the Collateral
in accordance with Section 3.4, take one or more Enforcement Actions. Except as
expressly provided for in this Agreement, nothing in this Agreement shall
prevent the Parties hereto from exercising any other remedy, or taking any other
action, under any of the Financing Documents.
Section 3.3 Foreclosure. Any Party taking a permitted Foreclosure Action
may enforce its Financing Documents independently as to Borrower and each
Guarantor and independently of any other remedy or security such Party at any
time may have or hold in connection with its Secured Liabilities, and, it shall
not be necessary for such Party to marshal assets in favor of any other Party
hereto or any other Person or to proceed upon or against or exhaust any other
security or remedy before proceeding to enforce the Financing Documents. Each of
the Trustee (for so long as the Credit Facility Indebtedness is not Fully Paid)
and the Credit Facility Lender (for so long as the Trustee and the holders of
the Notes are owed any Subordinated Lien Indebtedness) expressly waives any
right to require the other Party to marshal assets in favor of any Party or to
proceed against any Collateral provided by Borrower or any Guarantor, or any
other property, assets, or collateral provided by Borrower, any Guarantor, or
any other Person, and agrees that the Party taking such permitted Foreclosure
Action may proceed against Borrower, any Guarantor, any Collateral or other
property, assets, or other collateral provided by any of them or by any other
Person, in such order as it shall determine in its sole and absolute discretion.
The foregoing notwithstanding: (a) with respect to the sale or other disposition
of any Collateral governed by Article 9 of the Uniform Commercial Code, the
Party conducting such sale or other disposition agrees in favor of the other
Party that every aspect of such sale or other disposition, including the method,
manner, time, place, and terms, must be commercially
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reasonable, (b) with respect to the sale or other disposition of any other
Collateral, the Party conducting such sale or other disposition agrees in favor
of the other Party that such sale or other disposition shall be conducted
according to the normal practices of commercial real property secured lenders
generally, (c) with respect to the sale or other disposition of any Collateral
by either Party, such Party agrees to provide the other Party with such written
notice as it is required by applicable law (including, if applicable, the
Uniform Commercial Code) to provide to Borrower or the Guarantors (without
regard to whether Borrower or the Guarantors have waived their entitlement to
receive such notice), and (d) the Credit Facility Lender agrees that, at such
time as all Credit Facility Indebtedness is Fully Paid, the Credit Facility
Lender thereupon promptly shall cease all further Foreclosure Actions.
Section 3.4 Distribution. Each Party agrees that, upon any distribution as
a result of a Foreclosure Action, or the receipt of any other payment or
distribution with respect to the Collateral, the proceeds thereof shall be
distributed in the order of, and in accordance with, the following priorities:
(a) FIRST:
(i) if the Foreclosure Action is taken by the Credit Facility
Lender, to the payment of all reasonable costs and expenses,
commissions and taxes of the Credit Facility Lender incurred in
connection with taking any such Foreclosure Action or other
realization, including all reasonable expenses (including attorneys
fees and expenses), liabilities and advances made or incurred by the
Credit Facility Lender in connection therewith;
(ii) if the Foreclosure Action is taken and entitled to be taken
hereunder by the Trustee, to the payment of all reasonable costs and
expenses, commissions and taxes of the Trustee incurred in connection
with taking any such Foreclosure Action or other realization,
including all reasonable expenses (including attorneys fees and
expenses), liabilities and advances made or incurred by the Trustee in
connection therewith;
(b) SECOND, to the Credit Facility Lender, until the earlier of (i)
the Credit Facility Indebtedness being Fully Paid and (ii) the first time
following the Trigger Date at which the Maximum Amount of Credit Facility
Indebtedness is Fully Paid;
(c) THIRD, to the Trustee, until all Subordinated Lien Indebtedness is
Fully Paid;
(d) FOURTH, to the Credit Facility Lender until all outstanding Credit
Facility Indebtedness in excess of the Maximum Amount is Fully Paid.
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Section 3.5 Notice of Certain Events. Each Party agrees that it will notify
the other, in writing, (a) if it receives actual notice of the occurrence of a
Trigger Event or Enforcement Event, not later than 30 days after the date of any
such occurrence, and (b) at least 15 days prior to exercising any remedies with
respect to any portion of the Collateral. Notwithstanding the foregoing, (a) the
Credit Facility Lender shall not be obligated to provide such prior written
notice if exigent circumstances require that the Credit Facility Lender act
immediately in order to preserve, protect, or obtain possession or control over
the Collateral or any portion thereof; provided, that, if such exigent
circumstances require the Credit Facility Lender to so act immediately, the
Credit Facility Lender agrees to provide the Trustee with written notice as soon
as practicable following the Credit Facility Lender first exercising any of its
secured creditor remedies with respect to the Collateral, and (b) no Party shall
incur any liability to the other under this Section 3.5 as a result of the
failure of such Party to provide any such notice so long as the failure to so
provide such notice was not the result of willful misconduct, bad faith or gross
negligence.
ARTICLE IV
ENFORCEMENT OF PRIORITIES
Section 4.1 In Furtherance of Lien Priorities. Each Party agrees as
follows:
(a) All payments or distributions of or with respect to the Collateral
that are received by any Party contrary to the provisions of this Agreement
shall be segregated from other funds and property held by such Party and
shall be held in trust for the Party entitled thereto in accordance with
the provisions of Section 3.4 hereof (the "Entitled Party") and such Party
shall forthwith pay over such remaining proceeds to the Entitled Party in
the same form as so received (with any necessary endorsement) to be applied
(in the case of cash) or held as Collateral (in the case of non-cash
property or securities) in accordance with the provisions hereof and the
provisions of the applicable Financing Documents.
(b) After the earlier of (i) the date on which all Credit Facility
Indebtedness is Fully Paid and (ii) the first date following the Trigger
Date on which the Maximum Amount of Credit Facility Indebtedness is Fully
Paid, the Credit Facility Lender will promptly execute and deliver all
further instruments and documents, and take all further acts that may be
necessary, or that the Trustee may reasonably request, to permit the
Trustee to evidence the termination of the Lien Priority hereunder, or in
furtherance thereof; provided, that the Credit Facility Lender shall not be
required to pay over any payment or distribution, execute any instruments
or documents, or take any other action
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referred to in this clause (b) to the extent that such action would
contravene any law, order or other legal requirement, and in the event of a
controversy or dispute, the Credit Facility Lender may interplead any
payment or distribution in any court of competent jurisdiction.
(c) Each Party is hereby authorized to demand specific performance of
this Agreement, whether or not Borrower or any Guarantor shall have
complied with any of the provisions hereof applicable to it, at any time
when any other Party shall have failed to comply with the provisions of
this Agreement applicable to it, provided, that the remedy of specific
performance shall not be available, and the asserting Party shall be free
to assert any and all legal defenses it may possess, if such remedy would
result in, or otherwise constitute, a violation of the Employee Retirement
Income Security Act of 1974, as amended. Each Party hereto hereby
irrevocably waives any defense based on the adequacy of a remedy at law,
which might be asserted as a bar to such remedy of specific performance.
(d) This Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Secured
Liabilities is, other than as a result of any intentional fraud or gross
negligence of the applicable Party, rescinded or must otherwise be returned
by the applicable Party upon the insolvency, bankruptcy or reorganization
of Borrower or any Guarantor or otherwise, all as though such payment had
not been made.
Section 4.2 Perfection of Possessory Security Interests. For the limited
purpose of perfecting the security interests of the Parties in those types or
items of Collateral in which a security interest only may be perfected by
possession or control, each Party hereby appoints the other as its
representative for the limited purpose of possessing on its behalf any such
Collateral that may come into the possession or control of such other Party from
time to time, and each Party agrees to act as the other's representative for
such limited purpose of perfecting the other's security interest by possession
or control through a representative, provided that neither Party shall incur any
liability to the other by virtue of acting as the other's representative
hereunder. In this regard, any Party that is in possession or control of any
such item of Collateral agrees that if it elects to relinquish possession or
control of such item of Collateral it shall deliver possession or control
thereof to the other Party; provided, that no Party shall be required to deliver
any such item of Collateral or take any other action referred to in this section
to the extent that such action would contravene any law, order or other legal
requirements, and in the event of a controversy or dispute, such Party may
interplead any item of Collateral in any court of competent jurisdiction.
Section 4.3 Control of Dispositions of Collateral and Effect thereof on
Junior Liens.
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(a) Each Party hereby agrees that any Uniform Commercial Code
collection, sale, or other disposition of Collateral by the Credit Facility
Lender shall be free and clear of any Lien of the Trustee in such
Collateral; provided, that the Trustee shall retain a Lien (having the same
priority as the Lien it previously had on the item of Collateral that was
collected, sold or otherwise disposed of) on the proceeds of such
collection, sale, or other disposition (except to the extent such proceeds
are applied to the Credit Facility Indebtedness in accordance with Section
3.4).
(b) To the extent reasonably requested by either Party, the other
Party will cooperate in providing any necessary or appropriate releases to
permit a collection, sale, or other disposition of Collateral, as provided
in subsection (a) of this Section 4.3, by the Party holding the senior Lien
therein free and clear of the other Party's junior Lien.
ARTICLE V
MISCELLANEOUS
Section 5.1 Rights of Subrogation. The Trustee agrees that no payment or
distribution to the Credit Facility Lender pursuant to the provisions of this
Agreement shall entitle the Trustee to exercise any rights of subrogation in
respect thereof until the first date following the Trigger Date on which the
Maximum Amount of Credit Facility Indebtedness shall have been Fully Paid.
Section 5.2 Further Assurances. The Parties will, at their own expense and
at any time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that any Party may reasonably request, in order to protect any
right or interest granted or purported to be granted hereby or to enable any
Party to exercise and enforce its rights and remedies hereunder; provided, that
no Party shall be required to pay over any payment or distribution, execute any
instruments or documents, or take any other action referred to in this Section
5.2 to the extent that such action would contravene any law, order or other
legal requirement binding upon such Party, and in the event of a controversy or
dispute, any Party may interplead any payment or distribution in any court of
competent jurisdiction, without further responsibility in respect of such
payment or distribution under this Section 5.2.
Section 5.3 Defenses Similar to Suretyship Defenses. All rights, interests,
agreements and obligations of each of the Parties under this Agreement, shall
remain in full force and effect irrespective of:
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(a) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Liabilities, or any other
amendment or waiver of or any consent to departure from the Financing
Documents, provided, that this clause (a) shall not apply to, and the
Trustee's Liens in the Collateral shall not be subordinated in priority by
virtue of this Agreement to, the Credit Facility Lender's Liens therein if
and to the extent that the Credit Facility Indebtedness is increased,
without the express written consent of the Trustee, to an amount in excess
of the Maximum Amount: or
(b) any exchange, release, nonenforcement or nonperfection of any
Party's Liens with respect to any Collateral, or any release, amendment or
waiver of or consent to departure from any guaranty, for all or any of the
Secured Liabilities; or
(c) any failure by any Party to marshal assets in favor of any other
Party or any other Person or to proceed upon or against or exhaust any
security or remedy before proceeding to enforce the Financing Documents.
Section 5.4 Waiver. Except as otherwise provided in Section 2.1 and the
other provisions hereof, to the maximum extent permitted by applicable law, the
Trustee hereby waives, solely with respect to the Collateral to which the Lien
Priority relates, any failure, omission, delay or lack on the part of the Credit
Facility Lender to enforce, assert or exercise any right, power or remedy
conferred on the Credit Facility Lender in any of the Credit Facility Loan
Documents or the inability of the Credit Facility Lender to enforce any
provision of the Credit Facility Loan Documents or this Agreement.
Section 5.5 Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Party shall in any event be
effective unless the same shall be in writing and signed by each Party, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 5.6 Addresses for Notices. All demands, notices and other
communications provided for hereunder shall be in writing and, if to the
Trustee, mailed or sent by telecopy or delivered to it, addressed to it as
follows:
Firstar Bank of Minnesota, N.A.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: 651.229.6415
and if to the Credit Facility Lender, mailed or sent by telecopy or delivered to
it, addressed to it as follows:
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Foothill Capital Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Business Finance Manager
Facsimile: 310.453.7413
or as to any Party at such other address as shall be designated by such Party in
a written notice to the other parties complying as to delivery with the terms of
this Section. All such demands, notices and other communications shall be
effective: when mailed, two business days after deposit in the mails, postage
prepaid; when sent by telecopy, when receipt is acknowledged by the receiving
telecopy equipment (or at the opening of the next business day if receipt is
after normal business hours); or when delivered, as the case may be, addressed
as aforesaid.
Section 5.7 No Waiver of Remedies. No failure on the part of any Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 5.8 Continuing Agreement. This Agreement is a continuing agreement
and shall (a) be binding upon the Parties and their successors and assigns
(including, without limitation, all parties that become lenders or participants
under the Credit Facility), and (b) inure to the benefit of and be enforceable
by the Parties and their respective successors, transferees and assigns.
Section 5.9 Governing Law; Entire Agreement. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California, except as otherwise preempted by applicable federal law. This
Agreement constitutes the entire agreement and understanding among the Parties
with respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 5.10 Counterparts. This Agreement may be executed in any number of
counterparts, and it is not necessary that the signatures of all Parties be
contained on any one counterpart hereof, each counterpart will be deemed to be
an original, and all together shall constitute one and the same document.
Section 5.11 No Third Party Beneficiary. This Agreement is solely for the
benefit of the Parties (and their successors and assigns) and the holders of the
Secured Liabilities (including the Credit Facility Lender and the Holders). No
other Person (including Borrower, any Guarantor or any subsidiary or affiliate
of Borrower) shall be
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deemed to be a third party beneficiary of this Agreement or shall have any
rights to enforce any provisions hereof.
Section 5.12 Headings. The headings of the articles and sections of this
Agreement are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions hereof.
Section 5.13 Severability. If any of the provisions in this Agreement
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement and shall not invalidate the Lien Priority or any
other priority set forth in this Agreement.
Section 5.14 Trustee Status. Notwithstanding any term herein to the
contrary, it is hereby expressly agreed and acknowledged that the subordination
and related agreements set forth herein by the Trustee are made solely in its
capacity as trustee and collateral agent under the Indenture Documents and with
respect to the Notes issued under the Indenture (and not in its individual
commercial capacity, except to the extent that it is or becomes the holder of
any such Note). The Trustee shall not have any duties, obligations, or
responsibilities to the Credit Facility Lender under this Agreement except as
expressly set forth herein. Nothing in this Agreement shall be construed to
operate as a waiver by the Trustee, with respect to Borrower or any holder of
any Subordinated Lien Indebtedness, of the benefit of any exculpatory
provisions, presumptions, indemnities, protections, benefits, immunities or
reliance rights contained in the Indenture, and, by its acknowledgment hereof,
Borrower expressly agrees that as between itself and the Trustee, the Trustee
shall have such benefit with respect to all actions or omissions by the Trustee
pursuant to this Agreement. For all purposes of this Agreement, Trustee may (a)
rely in good faith, as to matters of fact, on any representation of fact
believed by Trustee to be true (without any duty of investigation) and that is
contained in a written certificate of any authorized representative of Borrower
or of the Credit Facility Lender, (b) rely in good faith, as to matters of law,
on any advice received from its legal counsel or an opinion of its counsel,
counsel to Borrower or counsel to the Credit Facility Lender, and shall have no
liability for any action or omission taken in reliance thereon, and (c) assume
in good faith (without any duty of investigation), and rely upon, the
genuineness, due authority, validity, and accuracy of any certificate,
instrument, notice, or other document believed by it in good faith to be genuine
and presented by the proper person.
(Signature Page to Follow)
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IN WITNESS WHEREOF each Party has caused this Agreement to be duty executed
and delivered as of the date first above written.
CREDIT FACILITY LENDER: FOOTHILL CAPITAL CORPORATION, a
California corporation
By: /s/ Xxxxx Xxxxx
---------------------------------
TRUSTEE: FIRSTAR BANK OF MINNESOTA, N.A.,
solely in its capacity as Trustee
(and not individually)
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name:
Title
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ACKNOWLEDGMENT
The undersigned hereby acknowledges that (a) it has received a copy of the
foregoing Intercreditor Agreement and consents thereto, and agrees to recognize
all rights granted hereby to the parties thereto, and will not do any act or
perform any obligation which is not in accordance with the agreements set forth
in such Intercreditor Agreement and (b) it is not an intended beneficiary or
third party beneficiary under the Intercreditor Agreement.
Dated as of February 23, 2001.
PENINSULA GAMING, LLC
a Delaware limited liability company
By: /s/ M. Xxxxx Xxxxxxx
--------------------------------
Name:
Title
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