Exhibit 10.4
EXECUTION VERSION
INTERCREDITOR AGREEMENT
by and among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Bank Agent
and
U.S. BANK NATIONAL ASSOCIATION,
as 2014 Notes Indenture Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
December 14, 2004
TABLE OF CONTENTS
Page
----
1. Definitions and General Provisions.......................................................................2
1.1 Definitions.....................................................................................2
1.2 Interpretation.................................................................................14
2. Collateral Agent........................................................................................14
2.1 Appointment....................................................................................14
2.2 Nature of Duties...............................................................................14
2.3 Lack of Reliance on the Collateral Agent.......................................................15
2.4 Certain Rights of the Collateral Agent; Pari Passu in Priority of Liens;
Separate Collateral............................................................................15
2.5 Reliance.......................................................................................16
2.6 Indemnification................................................................................16
2.7 Collateral Agent in its Individual Capacity....................................................17
2.8 Holders........................................................................................17
2.9 Resignation and Removal of the Collateral Agent................................................17
3. Collateral, Priority of Liens, Subordination and Release................................................18
3.1 Liens and Security Interests...................................................................18
3.2 Separate Collateral............................................................................19
3.3 Confirmation of Liens..........................................................................19
4. Rights and Limitation of Actions With Respect to Collateral.............................................19
4.1 Rights and Limitations Applicable to Second Lien Secured Parties...............................19
4.2 Rights and Limitations Applicable to the First Lien Secured Parties............................22
4.3 Notification of Events of Default..............................................................23
4.4 Certain Waivers by Second Lien Secured Parties.................................................24
5. Rights and Limitations with Respect to Amendments, Waivers and Other Actions
Under Facility Agreements..24
5.1 Rights and Limitations Applicable to Second Lien Secured Parties...............................24
5.2 Rights and Limitations Applicable to the First Lien Secured Parties............................24
5.3 Waivers and Deferrals of Payments..............................................................26
5.4 Limitation of Liability........................................................................26
6. Insolvency or Liquidation Proceedings...................................................................27
6.1 Right to File Involuntary Bankruptcy...........................................................27
6.2 Certain Agreements and Consents by Second Lien Secured Parties.................................27
6.3 Avoidance of Bank Secured Obligations in Bankruptcy............................................30
6.4 No Other Restrictions on Second Lien Secured Parties...........................................31
7. Default Purchase Option.................................................................................31
8. Application of Proceeds of Shared Collateral............................................................32
8.1 Application of Proceeds Generally..............................................................32
8.2 Certain Terms..................................................................................34
8.3 Sharing of Non-Pro Rata Payments...............................................................34
8.4 Overpayments...................................................................................35
8.5 Payment to Class Representatives...............................................................35
9. Representations and Warranties..........................................................................35
9.1 Organization...................................................................................35
9.2 Authorization..................................................................................35
9.3 Binding Agreement..............................................................................35
9.4 No Consent Required............................................................................36
9.5 No Conflict....................................................................................36
10. Miscellaneous Provisions................................................................................36
10.1 Notices; Addresses.............................................................................36
10.2 Further Assurances.............................................................................37
10.3 Waiver.........................................................................................37
10.4 Entire Agreement...............................................................................37
10.5 Governing Law..................................................................................37
10.6 Severability...................................................................................38
10.7 Headings.......................................................................................38
10.8 Limitations on Liability.......................................................................38
10.9 Consent of Jurisdiction........................................................................38
10.10 Successors and Assigns.........................................................................38
10.11 Counterparts...................................................................................39
10.12 No Third Party Beneficiaries...................................................................39
10.13 Co-Collateral Agents; Separate Collateral Agents...............................................39
10.14 Amendments.....................................................................................40
10.15 Additional Secured Parties.....................................................................41
10.16 Trust Indenture Act............................................................................41
10.17 Reinstatement..................................................................................41
10.18 Attorneys' Fees................................................................................42
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT is made as of December 14, 2004 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, this "AGREEMENT"), by and among (i) DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Administrative Agent acting on behalf of itself and the Bank Lenders
pursuant to the Bank Credit Agreement (together with its successors and assigns
in such capacity, the "BANK AGENT"), (ii) U.S. BANK NATIONAL ASSOCIATION, a
national banking association, in its capacity as Trustee under the 2014 Notes
Indenture (together with its successors and assigns in such capacity, the "2014
NOTES INDENTURE TRUSTEE"), and (iii) the Collateral Agent (as hereinafter
defined).
RECITALS:
A. PHASE I PROJECT. Wynn Las Vegas, LLC, a Nevada limited liability
company (the "Company"), is constructing and plans to own and operate ▇▇▇▇ Las
Vegas, an approximately 2,700-room hotel, casino, golf course and entertainment
complex with related ancillary facilities, located on the site of the former
Desert Inn Resort & Casino (the "PHASE I PROJECT").
B. PHASE II PROJECT. The Company may develop, construct, own and
operate an expansion of the Phase I Project, consisting of an approximately
1,500-suite hotel tower, additional casino space and additional restaurants, a
spa, swimming pools, and retail and convention space with related ancillary
facilities, located on approximately 20 acres of land adjacent to the Phase I
Project, tentatively named "Encore at ▇▇▇▇ Las Vegas" (the "PHASE II PROJECT"
and, collectively with the Phase I Project, the "PROJECTS").
C. 2014 NOTES INDENTURE. Concurrently herewith, the Company, Wynn Las
Vegas Capital Corp., a Nevada corporation ("CAPITAL CORP."), certain guarantors
party thereto and the 2014 Notes Indenture Trustee have entered into an
Indenture (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "2014 NOTES INDENTURE"), pursuant to which the Company
and Capital Corp. will issue the 2014 Notes, as more particularly described
therein.
D. BANK CREDIT FACILITY. Concurrently herewith, the Company, the Bank
Agent, the Bank Lenders and the other parties thereto have entered into the
Bank Credit Agreement, pursuant to which the Bank Lenders have agreed, subject
to the terms thereof, to provide the Bank Credit Facility to the Company, as
more particularly described therein.
E. COLLATERAL. In addition to certain other collateral and security
interests, (a) the Bank Credit Facility is secured by a first priority lien on
the Bank Separate Collateral and the Shared Collateral and (b) the 2014 Notes
are secured by a first priority lien on the 2014 Notes Separate Collateral and
the Shared Collateral, all as more particularly described in Section 3.
F. DISBURSEMENT AGREEMENT. The Company, the Bank Agent, the 2014 Notes
Indenture Trustee and the Disbursement Agent, have entered into the Master
Disbursement Agreement as of even date herewith (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
"DISBURSEMENT Agreement"), in order to set forth, among other things, (a) the
mechanics for and allocation of the Company's request for Advances under the
Bank Credit Facility and the 2014 Notes and from the Company's Funds Account
and (b) the conditions precedent to the Closing Date, to the initial Advance
and to subsequent Advances.
G. INTERCREDITOR AGREEMENT. The Project Credit Parties desire to enter
into this Agreement in order to (a) appoint the Collateral Agent as their agent
for purposes of entering into the Shared Security Documents and to receive,
maintain, administer, enforce and distribute the Shared Collateral and the
Separate Collateral as provided herein and therein and (b) set forth certain
provisions relating to the Project Credit Parties' respective rights in the
Collateral, the exercise of remedies upon the occurrence of an event of
default, the application of proceeds of enforcement and certain other matters.
NOW, THEREFORE, with reference to the foregoing recitals and in
reliance thereon, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS AND GENERAL PROVISIONS.
1.1 DEFINITIONS. Except as otherwise expressed and provided herein,
all capitalized terms used in this Agreement and its Exhibits and not otherwise
defined herein shall have the meanings given to such terms in the Disbursement
Agreement. Except as set forth herein, the rules of interpretations set forth
in Exhibit A to the Disbursement Agreement shall apply.
1.1.1 OTHER TERMS. The following terms have the meanings set
forth below:
"2014 NOTEHOLDERS" means the holders of the 2014 Notes.
"2014 NOTES" means all notes (including Exchange Notes, as defined
in the 2014 Notes Indenture) issued by the Company and Capital Corp., as
co-issuers, pursuant to the 2014 Notes Indenture, whether on or after the
Closing Date.
"2014 NOTES INDENTURE" has the meaning given in the recitals
hereto.
"2014 NOTES INDENTURE TRUSTEE" has the meaning given in the
preamble hereto.
"2014 NOTES SECURED OBLIGATIONS" means all Obligations of the
Company Group to or for the benefit of the 2014 Notes Indenture Trustee or the
2014 Noteholders under the 2014 Notes Indenture, the 2014 Notes, the First Lien
Security Documents and any other agreement, document or instrument entered into
or delivered by any member of the Company Group on, prior to, or after the
Closing Date with or to or for the benefit of the Collateral Agent, the 2014
Notes Indenture Trustee or the 2014 Noteholders in connection with the
financing of either or both Projects.
"2014 NOTES SEPARATE COLLATERAL" means the 2014 Notes Proceeds
Account Collateral and any other property or assets of the Company Group which
has been pledged to secure the 2014 Notes Secured Obligations but not the Bank
Secured Obligations, Obligations under any Permitted Additional Senior Secured
Debt Agreement or the Second Lien Secured Obligations.
"ACCOUNT COLLATERAL" or "ACCOUNTS COLLATERAL" means, collectively,
all of the Company Accounts and all amounts on deposit therein, any interest
earned thereon, and any investments of such amounts made pursuant to the
Collateral Account Agreements and any proceeds of the foregoing. When the term
"Collateral" is used in conjunction with a specified Account (e.g., the
"Disbursement Account Collateral"), said Account Collateral means the specified
account and all amounts on deposit therein, any interest earned thereon, and
any investments of such amounts made pursuant to the applicable Collateral
Account Agreement, and any proceeds of the foregoing, except to the extent such
proceeds are deposited into another Account pursuant to the terms of the
Disbursement Agreement or the applicable Collateral Account Agreement.
"AGREEMENT" has the meaning given in the preamble hereto.
"BANK AGENT" has the meaning given in the preamble hereto.
"BANK CREDIT AGREEMENT" means the Credit Agreement, dated as of the
date hereof, among the Company, the Bank Agent, the Bank Lenders and the other
parties hereto, as the same may be amended, modified, extended, renewed,
restated or supplemented from time to time, and including any agreement
extending the maturity of, or refinancing or restructuring (including, but not
limited to, the inclusion of additional borrowers or guarantors thereunder or
any increase in the amount borrowed) of all or any portion of, the indebtedness
under such agreement or any successor agreements, whether or not with the same
agent, trustee, representative, lenders or holders; provided that, with respect
to any agreement providing for such refinancing or replacement of indebtedness
under the Bank Credit Agreement, such agreement shall only be treated as the
Bank Credit Agreement hereunder if (a) it represents all of the obligations
thereunder and (b) a representative of the Bank Lenders under any refinancing
or replacement indebtedness (that either replaces or refinances in full the
Bank Credit Agreement or represents the refinancing or replacement indebtedness
with the largest aggregate amount of indebtedness and unused commitments of all
the indebtedness refinancing or replacing the Bank Credit Agreement) executes a
counterpart hereto agreeing to be deemed the Bank Agent and the Collateral
Agent hereunder and to be bound hereby in such capacity.
"BANK CREDIT FACILITY" means, collectively, each loan or credit
facility (including any term loan credit facility and/or any revolving credit
facility (including any letter of credit facility thereunder)) described and
made available from time to time to the Company by the Bank Lenders pursuant to
the Bank Credit Agreement.
"BANK LENDERS" means (a) the financial institutions and other
lenders which are now, or may in the future become, parties to the Bank Credit
Agreement and (b) the counterparties to Interest Rate Agreements that are
permitted to be secured by the Bank Credit Agreement, in each case, or their
successors or assignees in such capacity as lenders or counterparties, as the
case may be, under the Bank Credit Agreement.
"BANK SECURED OBLIGATIONS" means all Obligations of the Company
Group to or for the benefit of the Bank Agent or the Bank Lenders under the
Bank Credit Agreement, the First Lien Security Documents, the Facility Fee
Letter (as defined in the Bank Credit Agreement), and any other agreement,
document or instrument entered into or delivered by a member of the Company
Group on, prior to or after the Closing Date with or to the Collateral Agent,
the Bank Agent or the Bank Lenders in connection with the financing of either
or both Projects or for working capital needs or for other general corporate
purposes (including, without limitation, Obligations in respect of Specified
Hedge Agreements, but only to the extent that the Bank Credit Agreement permits
such Obligations to be secured by the First Lien Security Document).
"BANK SEPARATE COLLATERAL" means (a) the Bank Proceeds Account
Collateral, (b) all amounts deposited by the Bank Agent into an account
specially designated to secure outstanding Letters of Credit, but only to the
extent that the Bank Agent would have been permitted pursuant to this Agreement
to apply such amounts against the Bank Secured Obligations and (c) any other
property or assets of the Company Group which has been pledged to secure the
Bank Secured Obligations but not the Obligations under any Permitted Additional
Senior Secured Debt Agreement, the Second Lien Secured Obligations or the 2014
Notes Secured Obligations.
"BANKRUPTCY LAW" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute, and any
other state or federal insolvency, reorganization, moratorium or similar law
for the relief of debtors now or hereafter in effect.
"BLOCKING EVENT" means (a) the occurrence of an Event of Default
under Section 8(a) of the Bank Credit Agreement or Section 6.01(a) or (b) of
the 2014 Notes Indenture or any comparable provision of any other First Lien
Security Document or (b) that the Bank Secured Obligations, 2014 Notes Secured
Obligations or any other First Lien Secured Obligations have become due and
payable in full (whether at maturity, upon acceleration or otherwise).
"CLASS" shall mean each class of Secured Parties, i.e., (a) the
Bank Lenders as holders of the Bank Secured Obligations shall constitute a
"Class," and (b) the 2014 Noteholders as holders of the 2014 Notes Secured
Obligations shall constitute a "Class."
"COLLATERAL" means the following unique and separate categories of
property encumbered to secure the Obligations to any of the Secured Parties:
(a) the Shared Collateral, (b) the Bank Separate Collateral and (c) the 2014
Notes Separate Collateral.
"COLLATERAL AGENT" means (a) Deutsche Bank Trust Company Americas
in its capacity as collateral agent for the benefit of the Bank Agent, the 2014
Notes Indenture Trustee, and any other Project Credit Party that from time to
time becomes a party hereto in accordance with Section 10.15, as appointed in
the first sentence of Section 2.1 (together with its successors and assigns and
any replacement collateral agent appointed pursuant to the terms hereof), (b)
Deutsche Bank Trust Company Americas in its capacity as collateral agent for
the benefit of the Bank Agent as appointed in the second sentence of Section
2.1 (together with its successors and assigns and any replacement collateral
agent appointed pursuant to the terms hereof), and (c) Deutsche Bank Trust
Company Americas in its capacity as collateral agent for the benefit of the
2014 Notes Indenture Trustee as appointed in the third sentence of Section 2.1
(together with its successors and assigns and any replacement collateral agent
appointed pursuant to the terms hereof); provided, however, that (i) in respect
of the Shared Collateral, "Collateral Agent" means Deutsche Bank Trust Company
Americas in its capacity as collateral agent as described in clause (a) above,
(ii) in respect of the Bank Separate Collateral, "Collateral Agent" means
Deutsche Bank Trust Company Americas in its capacity as collateral agent as
described in clause (b) above, (iii) in respect of the 2014 Notes Separate
Collateral, "Collateral Agent" means Deutsche Bank Trust Company Americas in
its capacity as collateral agent as described in clause (c) above, and (iv) in
all other cases, "Collateral Agent" means Deutsche Bank Trust Company Americas
in each of its capacities described in clauses (a), (b), and (c) above.
"COMPANY" has the meaning given in the recitals hereto.
"COMPANY GROUP" means, collectively, the Company and any Affiliate
of the Company that from time to time incurs any Obligations or pledges any
Collateral under any Financing Agreement, unless released from such Obligations
or pledges pursuant to the applicable Financing Agreements.
"CREDIT BID RIGHTS" means, in respect of any order relating to a
sale of assets in any Insolvency or Liquidation Proceeding, that:
(a) such order grants the Second Lien Secured Parties
(individually and in any combination) the right to bid at the sale of
such assets and the right to offset such Second Lien Secured Parties'
claims secured by Liens upon such assets against the purchase price of
such assets if:
(i) the bid of such Second Lien Secured Parties
is the highest bid or otherwise determined
by the court to be the best offer at the
sale; and
(ii) the bid of such Second Lien Secured Parties
includes a cash purchase price component
payable at the closing of the sale in an
amount that would be sufficient on the date
of the closing of the sale to achieve the
Discharge of the First Lien Secured
Obligations and to satisfy all Liens
entitled to priority over the Liens
securing the First Lien Secured Obligations
that attach to the proceeds of the sale, if
such amount were applied on the date of the
sale to the payment in cash of:
(A) all unpaid First Lien Secured Obligations;
(B) all unpaid claims secured by any such
Liens entitled to priority over the Liens
securing the First Lien Secured
Obligations; and
(C) all claims and costs, including those
incurred in connection with the sale by
the Collateral Agent, the Bank Agent, the
Bank Lenders, the 2014 Notes Indenture
Trustee, the 2014 Noteholders, the
representatives of any Permitted
Additional Senior Secured Debt Agreement
and the holders of any Permitted
Additional Senior Secured Debt Agreement,
required by such order to be paid from the
proceeds of the sale, whether or not the
order requires or permits such amount to
be so applied; and
(b) such order allows the claims of the Second Lien Secured
Parties in such Insolvency or Liquidation Proceeding to the extent
required for the grant of such rights.
"DEFAULT PURCHASE OPTION" means the option granted to a
representative on behalf of the Second Lien Secured Parties pursuant to Section
7 to purchase all but not less than all of the First Lien Secured Obligations.
"DISBURSEMENT AGREEMENT" has the meaning given in the recitals
hereto.
"DISBURSEMENT AGREEMENT DEFAULT" means the occurrence and
continuance of an Event of Default under and as defined in the Disbursement
Agreement.
"DISBURSEMENT AGREEMENT DEFAULT DATE" the date upon which a
Disbursement Agreement Default occurs.
"DISCHARGE" means (a) in respect of the Bank Credit Facility, the
termination of all commitments to extend credit under the Bank Credit Facility,
payment in full in cash of the principal of and interest and premium (if any)
on all Bank Secured Obligations, termination, cancellation, expiration or cash
collateralization of all letters of credit issued under the Bank Credit
Facility and payment in full in cash of all other Bank Secured Obligations that
are unpaid at the time the principal and interest are paid in full in cash, (b)
in respect of the 2014 Notes, the satisfaction and discharge (pursuant to
Article 12 of the 2014 Notes Indenture), defeasance (pursuant to Article 8 of
the 2014 Notes Indenture) or other satisfaction in full of the 2014 Notes
Secured Obligations and (c) in respect of any other Class of Secured
Obligations, the termination of all commitments to extend credit under such
Class of Secured Obligations, the discharge, defeasance or payment in full in
cash of the principal of and interest and premium (if any) on all such Secured
Obligations, the termination, cancellation, expiration or cash
collateralization of all letters of credit, if any, issued under any Facility
Agreement and the discharge, defeasance or payment in full in cash of all other
Secured Obligations of such Class that are unpaid at the time the principal and
interest are paid in full in cash, discharged or defeased.
"ELIGIBLE PURCHASER" means any Person or Persons at any time or
from time to time designated by the holders of at least 25% in outstanding
principal amount of the Second Lien Secured Obligations, voting as a single
class, as entitled to exercise the Default Purchase Option.
"EVENT OF DEFAULT" means, as the context requires, (a) a
Disbursement Agreement Default, or (b) the occurrence and continuance of an
"Event of Default" (or comparable term) by or with respect to the Company under
the applicable Facility Agreement that has not been waived by the applicable
Project Credit Party (it being understood that the provisions of Section 1.2
shall not apply to any such waiver).
"FACILITY AGREEMENTS" means, collectively, the Bank Credit
Agreement, the 2014 Notes Indenture, each Permitted Additional Senior Secured
Debt Agreement and each Permitted Additional Junior Secured Debt Agreement.
"FIRST LIEN" means a Lien granted by a Security Document to the
Collateral Agent, for the benefit of the First Lien Secured Parties (or any of
them), upon any property or assets of the Company or any other member of the
Company Group to secure First Lien Secured Obligations.
"FIRST LIEN DOCUMENTS" means, collectively, the 2014 Indenture, the
2014 Notes, the Bank Credit Agreement, each Permitted Additional Senior Secured
Debt Agreement, the First Lien Security Documents, and all other agreements
governing, securing or relating to any First Lien Secured Obligations.
"FIRST LIEN SECURED CLAIM REDUCTION" has the meaning given in
Section 6.3.
"FIRST LIEN SECURED OBLIGATIONS" means, collectively, (a) the Bank
Secured Obligations, (b) the 2014 Notes Secured Obligations and (c) Obligations
under any Permitted Additional Senior Secured Debt Agreement.
"FIRST LIEN SECURED PARTIES" means, collectively, the holders of
First Lien Secured Obligations, the Bank Agent, the 2014 Notes Indenture
Trustee, the Collateral Agent and the representative for the holders of any
Indebtedness under any Permitted Additional Senior Secured Debt Agreement.
"FIRST LIEN SECURITY DOCUMENTS" means, collectively, the ▇▇▇▇ Las
Vegas Deed of Trust, the ▇▇▇▇ Sunrise Deed of Trust, the Wynn Golf Deed of
Trust, the Security Agreement, the 2014 Notes Environmental Indemnity
Agreements, the Collateral Agency Agreement, the Bank Guarantee, the Collateral
Account Agreements, the Completion Guaranty and any guaranties, deeds of trust,
security agreements or collateral account agreements or any other document
creating or perfecting a lien, security interest or other preferential
arrangement, and any related documents executed, filed, recorded or delivered
from time to time by any member of the Company Group in favor of the Collateral
Agent to secure the First Lien Secured Obligations.
"GUARANTOR" has the meaning given in the Bank Credit Agreement.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means (a) any case commenced
by or against the Company Group or any Person within the Company Group under
any Bankruptcy Law, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or liabilities of
the Company Group or any Person within the Company Group, any receivership or
assignment for the benefit of creditors relating to the Company Group or any
Person within the Company Group or any similar case or proceeding relative to
the Company Group or any Person within the Company Group or their creditors, as
such, in each case whether or not voluntary; (b) any liquidation, dissolution,
marshalling of assets or liabilities or other winding up of or relating to the
Company Group or any Person within the Company Group, in each case whether or
not voluntary and whether or not involving bankruptcy or insolvency; or (c) any
other proceeding of any type or nature in which substantially all claims of
creditors of the Company Group or any Person within the Company Group are
determined and any payment or distribution is or may be made on account of such
claims.
"JOINDER AGREEMENT" has the meaning given in Section 10.15.
"JOINT COMMITTEE" means a joint committee appointed with the
written consent of representatives of each Class of First Lien Secured Parties
(acting in accordance with their respective Facility Agreements), to perform
such duties and with such authority to act on behalf of each Class of First
Lien Secured Parties, in connection with directing the manner and method of
enforcement proceedings under the First Lien Security Documents, as the
representatives of each Class of First Lien Secured Parties (acting in
accordance with their respective Facility Agreements) jointly agree to delegate
to such Joint Committee.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law.
"NOTICE OF DEFAULT" means a notice of default which must be
recorded in the official real property records of ▇▇▇▇▇ County, Nevada, in
order to commence non-judicial foreclosure of a Deed of Trust in accordance
with applicable Nevada law.
"PERMITTED ADDITIONAL JUNIOR SECURED DEBT AGREEMENT" shall mean one
or more agreements evidencing secured indebtedness with, or guaranteed by, the
Company or any other member of the Company Group, provided that such agreement
is expressly permitted to be entered into and secured with a junior lien
(subject and subordinate to First Liens) on the Shared Collateral pursuant to
the First Lien Documents and the Second Lien Documents and that the provider of
such indebtedness becomes a party to this Agreement and agrees to be bound by
and comply with all of the terms and provisions hereof.
"PERMITTED ADDITIONAL SENIOR SECURED DEBT AGREEMENT" shall mean one
or more agreements evidencing senior secured indebtedness with, or guaranteed
by, the Company or any other member of the Company Group (including any
Specified Hedge Agreement), provided that such agreement is expressly permitted
to be entered into and secured with a First Lien on the Shared Collateral
pursuant to the First Lien Documents and the Second Lien Documents and that the
provider of such indebtedness becomes a party to this Agreement and agrees to
be bound by and comply with all of the terms and provisions hereof.
"PHASE I PROJECT" has the meaning given in the recitals hereto.
"PHASE II PROJECT" has the meaning given in the recitals hereto.
"PRIMARY OBLIGATIONS" has the meaning given in Section 8.2.
"PRO RATA PAYMENTS" means:
(a) with respect to any amount paid to a First Lien Secured
Party on a given date other than pursuant to Sections 4.15 and 4.16 of
the 2014 Notes Indenture, that the ratio of such payment to the total
payments made to all First Lien Secured Parties on such date is the
same as the ratio of (i) the total principal amount of First Lien
Secured Obligations outstanding with respect to such First Lien
Secured Party to (ii) the total principal amount of First Lien Secured
Obligations outstanding with respect to all First Lien Secured
Parties; provided, however, that (A) the principal amount will be
calculated without duplication of the underlying obligation for
"Guarantees" (as defined in the 2014 Notes Indenture) and Specified
Hedge Agreements, (B) reimbursement obligations for outstanding
Letters of Credit that are secured by a Lien on the Shared Collateral
ranking pari passu with the Liens securing the First Lien Secured
Obligations shall be considered outstanding First Lien Secured
Obligations and (C) with respect to Specified Hedge Agreements, the
"total principal amount of First Lien Secured Obligations outstanding"
of any First Lien Secured Party in its capacity as a counterparty or
intermediary to a Specified Hedge Agreement shall be deemed to equal
the aggregate amount of all costs, fees and expenses which would be
payable by a member of the Company Group if such Specified Hedge
Agreement was terminated on such date; and
(b) with respect to any amount paid to a First Lien Secured
Party on a given date in connection with Section 4.15 or 4.16 of the
2014 Notes Indenture, that such payment has been allocated among the
First Lien Secured obligations in accordance with such section of the
2014 Notes Indenture.
"PRO RATA SHARE" has the meaning given in Section 8.2.
"PROJECT CREDIT PARTIES" means the Bank Agent and the 2014 Notes
Indenture Trustee and any other Persons that from time to time become parties
hereto in accordance with Section 10.15.
"PROJECTS" has the meaning given in the recitals hereto.
"REQUIRED CLASS LENDERS" means, with respect to each Class of
Secured Parties, the requisite percentage of Secured Parties within such Class
whose approval is needed in order to take or consent to a specified action on
behalf of such Class.
"REQUIRED SECURED PARTIES" shall mean:
(a) for purposes of causing the Collateral Agent to commence
enforcement proceedings against the Shared Collateral pursuant to the
Shared Collateral Documents:
(i) at any time after the expiration of 30 days
following the earlier of (A) the occurrence and continuation
of an Event of Default under Section 6.01(a) or (b) of the
2014 Notes Indenture or (B) an acceleration of the 2014
Notes, then the holders of the majority of the aggregate
outstanding amount of 2014 Notes and Loans under the Bank
Credit Facility shall constitute the "Required Secured
Parties" for purposes of causing the Collateral Agent to
commence enforcement proceedings pursuant to the Shared
Security Documents; and
(ii) at any time that an Event of Default has
occurred and is continuing under the Bank Credit Agreement,
then the Bank Agent (acting under the Bank Credit Agreement)
shall constitute the "Required Secured Parties" for purposes
of causing the Collateral Agent to commence enforcement
proceedings pursuant to the Shared Security Documents;
provided that, if an event described in clause (i)(A) or (i)(B) above
has occurred and is continuing for more than 30 days and an Event of
Default has occurred and is continuing under the Bank Credit
Agreement, then either (x) the Bank Agent (acting under the Bank
Credit Agreement) or (y) the holders of the majority of the aggregate
outstanding amount of the 2014 Notes and Loans under the Bank Credit
Facility shall constitute the "Required Secured Parties" for purposes
of causing the Collateral Agent to commence enforcement proceedings
pursuant to the Shared Security Documents.
(b) for purposes of causing the Collateral Agent to commence
enforcement proceedings against the 2014 Notes Separate Collateral,
the 2014 Notes Indenture Trustee shall constitute the "Required
Secured Parties";
(c) for purposes of causing the Collateral Agent to commence
enforcement proceedings against the Bank Separate Collateral, the Bank
Agent shall constitute the "Required Secured Parties";
(d) once enforcement proceedings have been commenced in
accordance with clause (a) above, if either the 2014 Notes Indenture
Trustee or the Bank Agent (but not both) has directed the Collateral
Agent to commence such proceedings, then only the Required Secured
Parties that directed the Collateral Agent to commence such
proceedings shall be required to direct the Collateral Agent to
discontinue the proceedings; provided, however, that the Collateral
Agent shall not discontinue such proceedings if any other Required
Secured Parties who, at such time, would be entitled to direct the
Collateral Agent to commence the exercise of remedies in accordance
with clause (a) above instruct the Collateral Agent to continue such
proceedings;
(e) for purposes of directing the manner and method of
enforcement proceedings, once commenced in accordance with clause (a)
above, the Collateral Agent shall make all decisions that it deems
appropriate to diligently prosecute and complete such proceedings
unless instructed to do otherwise by the Joint Committee (if one has
been formed and is then in effect) or, if a Joint Committee is not
then in effect, by both the 2014 Notes Indenture Trustee (acting under
the 2014 Indenture) and the Bank Agent (acting under the Bank Credit
Agreement), acting together, who shall constitute the "Required
Secured Parties" under such circumstances. If the Collateral Agent
requests instructions from the Required Secured Parties with respect
to the manner and method of enforcement proceedings, then:
(i) if a Joint Committee has been formed and is then
in effect, such Joint Committee shall constitute the
"Required Secured Parties"; and
(ii) if a Joint Committee has not been formed or is
not then in effect both the 2014 Notes Indenture Trustee
(acting under the 2014 Notes Indenture) and the Bank Agent
(acting under the Bank Credit Agreement), acting together,
shall constitute the "Required Secured Parties";
provided, however, that if the 2014 Notes Indenture Trustee and the
Bank Agent both fail to respond to the Collateral Agent's request for
instructions or if the Collateral Agent receives conflicting
instructions from the 2014 Notes Indenture Trustee and the Bank Agent,
the Collateral Agent shall not act under the requested instructions
until a non-conflicting instruction is received from either (x) both
the 2014 Notes Indenture Trustee and the Bank Agent or (y) the holders
of the majority of the then outstanding indebtedness under the 2014
Notes Indenture and the Bank Credit Agreement; provided, further, that
if one of the 2014 Notes Indenture Trustee (acting under the 2014
Notes Indenture) or Bank Agent (acting under the Bank Credit
Agreement) responds with instructions to the Collateral Agent within
ten (10) Banking Days but the other Required Secured Creditor fails to
respond during such time frame, then the "Required Secured Parties"
under such circumstances shall constitute the Person who responded
during such time frame;
(f) for purposes of amending, modifying, varying or waiving
any provisions of the Shared Security Documents or other Security
Documents with respect to Shared Collateral (including any event of
default thereunder), the Bank Agent (acting under the Bank Credit
Agreement) shall constitute the "Required Secured Parties" entitled to
amend, modify, vary or waive any provision of such Security Documents
(without the consent of any other Project Credit Party), and any such
amendment, modification, variance or waiver shall be effective with
respect to, and shall automatically apply to the corresponding
provisions of, any Security Documents entered into with respect to the
2014 Notes Indenture, any Permitted Additional Senior Secured Debt
Agreement or any Permitted Additional Junior Secured Debt Agreement;
provided, however, that, (i) to the extent that such amendment,
modification, variance or waiver will result in the release of any
portion of the Collateral under the Shared Security Documents, (A) the
consent of the 2014 Notes Indenture Trustee and each other Project
Credit Party representing each Class of First Lien Secured Obligations
and Second Lien Secured Obligations shall be required (unless
otherwise specifically set forth in the 2014 Notes Indenture or
Facility Agreement governing such Class of First Lien Secured
Obligations or Second Lien Secured Obligations, as the case may be),
and (B) the "Required Secured Parties" under such circumstances shall
consist of the Bank Agent, the 2014 Notes Indenture Trustee and each
other Project Credit Party whose consent is required under clause (A)
above, (ii) any amendment, modification, variance or waiver adversely
affecting the relative rights and benefits of one or more Classes of
Secured Parties (and not all Secured Parties in a similar manner)
shall require the written consent of the representatives of such
Classes of Secured Parties (acting in such capacity); (iii) any
amendment or modification to the definition of "Excluded Assets" in
the Security Agreement or the definition of "Excluded Property" in the
▇▇▇▇ Las Vegas Deed of Trust, the Wynn Sunrise Deed of Trust or the
▇▇▇▇ Golf Deed of Trust shall require the consent of the 2014 Notes
Indenture Trustee if as a result of such amendment or modification the
2014 Notes will not be secured by substantially all of the assets of
the Company and the Guarantors (as defined in the 2014 Notes
Indenture) and (iv) any Potential Event of Default or Event of Default
occurring under a Shared Security Document by reason of a Potential
Event of Default or Event of Default under the 2014 Notes Indenture, a
Permitted Additional Senior Secured Debt Agreement or a Permitted
Additional Junior Secured Debt Agreement may only be waived by the
2014 Notes Indenture Trustee, the representative under such Permitted
Additional Senior Secured Debt Agreement or the representative under
such Permitted Additional Junior Secured Debt Agreement, as the case
may be, in each case, acting in such capacity; provided, however,
that, notwithstanding the foregoing, the consent of the 2014 Notes
Indenture Trustee, the representative under such Permitted Additional
Senior Secured Debt Agreement or the representative under such
Permitted Additional Junior Secured Debt Agreement shall not be
required to the extent that such amendment, modification, variance or
waiver is expressly permitted to occur without such Project Credit
Party's consent under the terms of the 2014 Notes Indenture, such
Permitted Additional Senior Secured Debt Agreement or such Permitted
Additional Junior Secured Debt Agreement, respectively;
(g) For purposes of adjusting settlement of all insurance
claims and condemnation awards in the event of any covered loss, theft
or destruction or condemnation of any Shared Collateral, and all
claims under insurance constituting Shared Collateral, the Bank Agent
(acting pursuant to the Bank Credit Agreement) shall constitute the
"Required Secured Parties";
(h) Notwithstanding clauses (a) through (g) above, if at the
time of an action by the Required Secured Parties all Obligations
under the Bank Credit Agreement have been Discharged and Obligations
under the 2014 Notes remain outstanding, then the "Required Secured
Parties" at such time shall be the 2014 Notes Indenture Trustee
(acting pursuant to the 2014 Notes Indenture);
(i) Notwithstanding clauses (a) through (h) above, if at the
time of an action by the Required Secured Parties all Bank Secured
Obligations and all 2014 Notes Secured Obligations have been
Discharged, then the Required Secured Creditors at such time shall be
the representatives of each Class of any other First Lien Secured
Obligations; and
(j) Notwithstanding clauses (a) through (i) above, if at the
time of an action by the Required Secured Parties all First Lien
Secured Obligations have been Discharged, then the Required Secured
Creditors at such time shall be the representatives of each Class of
any Second Lien Secured Obligations.
"SECOND LIEN DOCUMENTS" means, collectively, any Permitted
Additional Junior Secured Debt Agreement, the Second Lien Security Documents,
and all other agreements governing, securing or relating to any Second Lien
Secured Obligations entered into or delivered by any member of the Company
Group on, prior to, or after the Closing Date in connection with any of the
foregoing.
"SECOND LIEN RECOVERY" has the meaning given in Section 6.3.
"SECOND LIEN SECURED OBLIGATIONS" means all Obligations of the
Company Group under the Second Lien Documents.
"SECOND LIEN SECURED PARTIES" means, collectively, the holders of
the Second Lien Secured Obligations, the Collateral Agent and any
representative for the holders of indebtedness under any Permitted Additional
Junior Secured Debt Agreement.
"SECOND LIEN SECURITY DOCUMENTS" means, collectively, any
guaranties, deeds of trust, security agreements, pledge agreements, collateral
agency agreements, or collateral account agreements or any other document
creating or perfecting a Lien, security interest or other preferential
arrangement, and any related documents executed, filed, recorded or delivered
from time to time by any member of the Company Group in respect of any Second
Lien Secured Obligations.
"SECONDARY OBLIGATIONS" has the meaning given in Section 8.2.
"SECURED OBLIGATIONS" means, without duplication, any or all of the
First Lien Secured Obligations and/or the Second Lien Secured Obligations, as
the context requires.
"SECURED PARTIES" means, collectively, the First Lien Secured
Parties and the Second Lien Secured Parties.
"SECURITIES INTERMEDIARY" means any entity acting in its capacity
as securities intermediary under any Collateral Account Agreement.
"SECURITY DOCUMENTS" means, collectively, the First Lien Security
Documents and the Second Lien Security Documents.
"SEPARATE COLLATERAL" means, collectively, the 2014 Notes Separate
Collateral and the Bank Separate Collateral.
"SHAREABLE RECOVERY" has the meaning given in Section 6.3.
"SHARED COLLATERAL" means all real and personal property encumbered
to secure more than one Class of Secured Obligations; provided that "Shared
Collateral" shall exclude (a) the Bank Separate Collateral, (b) the 2014 Notes
Separate Collateral or (c) after the release of all or any portion of the
Shared Collateral in accordance with the Bank Credit Agreement and the 2014
Notes Indenture, such released Collateral.
"SHARED SECURITY DOCUMENTS" means each of the First Lien Security
Documents and Second Lien Security Documents entered into with the Collateral
Agent, whereby the Collateral Agent is acting on behalf of more than one Class
of Secured Parties.
"SPECIFIED HEDGE AGREEMENT" has the meaning given in the Bank
Credit Agreement.
1.2 INTERPRETATION. To the extent that reference is made in this
Agreement to any term defined in, or to any other provision of, any other
agreement, such term or provision shall continue to have the original meaning
thereof notwithstanding any termination, expiration or amendment of such other
agreement; provided, however, that to the extent that any agreement to which
all of the Project Credit Parties are parties is amended in accordance with the
terms thereof and hereof, then any references herein to the terms and
provisions of such agreement shall be to such terms or provisions as so
amended; and provided, further, that to the extent the 2014 Notes Indenture
allows for the amendment of any "Collateral Document" (as defined in the 2014
Notes Indenture) without the consent of the 2014 Notes Indenture Trustee, any
references herein to the terms and provisions of such document shall be to such
terms or provisions as so amended.
2. COLLATERAL AGENT.
2.1 APPOINTMENT. The Bank Agent and the 2014 Notes Indenture
Trustee hereby designate Deutsche Bank Trust Company Americas as the Collateral
Agent to act as specified herein and in each of the Shared Security Documents.
The Bank Agent hereby designates Deutsche Bank Trust Company Americas as its
collateral agent for purposes of the granting of a security interest in the
Bank Separate Collateral for the benefit of the Bank Agent and for the purposes
of the perfection of such security interest. The 2014 Indenture Trustee hereby
designates Deutsche Bank Trust Company Americas as its collateral agent for
purposes of the granting of a security interest in the 2014 Notes Separate
Collateral for the benefit of the 2014 Indenture Trustee and for the purposes
of the perfection of such security interest. Each Secured Party hereby
irrevocably authorizes, and each holder of any Note or any other instrument
evidencing any Secured Obligations by the acceptance of such Note or other
instrument evidencing any Secured Obligations shall be deemed irrevocably to
authorize, the Collateral Agent to take such action on its behalf under the
provisions of this Agreement, the Shared Security Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Collateral Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Collateral Agent may perform any of its duties hereunder or thereunder by or
through its authorized agents or employees.
2.2 NATURE OF DUTIES. The Collateral Agent shall have no duties or
responsibilities except those expressly set forth herein and in the Shared
Security Documents. Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
by it as such hereunder or under the Shared Security Documents or in connection
herewith or therewith to the maximum extent permitted by law. The duties of the
Collateral Agent shall be mechanical and administrative in nature. The
Collateral Agent shall not have, by reason of this Agreement, the Shared
Security Documents, any Facility Agreement, Specified Hedge Agreement or any
other document or instrument or otherwise, a fiduciary relationship in respect
of any Secured Party; and nothing in this Agreement, the Shared Security
Documents, any Facility Agreement, any Specified Hedge Agreement or any other
document or instrument, expressed or implied, is intended to or shall be so
construed as to impose upon the Collateral Agent any obligations in respect of
the Shared Security Documents except as expressly set forth herein or therein.
2.3 LACK OF RELIANCE ON THE COLLATERAL AGENT. Independently and
without reliance upon the Collateral Agent, each Secured Party, to the extent
it deems appropriate, has made and shall continue to make (a) its own
independent investigation of the financial condition and affairs of the members
of the Company Group and their Affiliates in connection with the making and the
continuance of the Obligations and the taking or not taking of any action in
connection therewith, and (b) its own appraisal of the creditworthiness of the
members of the Company Group and their Affiliates, and the Collateral Agent
shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Secured Party with any credit or other information with
respect thereto, whether coming into its possession before the extension of any
Obligations or the purchase of any Notes, or at any time or times thereafter.
The Collateral Agent shall not be responsible to any Secured Party for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of the Shared Security
Documents or the Shared Collateral or the financial condition of any members of
the Company Group or any of their Affiliates or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of the Shared Security Documents, or the financial condition of
any members of the Company Group or their Affiliates, or the existence or
possible existence of any Potential Event of Default or Event of Default.
2.4 CERTAIN RIGHTS OF THE COLLATERAL AGENT; PARI PASSU IN PRIORITY
OF LIENS; SEPARATE COLLATERAL.
2.4.1 No Secured Party shall have the right to take any action with
respect to (or against) any Shared Collateral, but instead may only cause the
Collateral Agent to take any action with respect to (or against) any Shared
Collateral in accordance with the terms and subject to the limitations set
forth herein. Notwithstanding the preceding sentence or any other provision of
this Agreement to the contrary, (a) the 2014 Notes Indenture Trustee (acting in
accordance with the 2014 Indenture) shall have the right at any time to
exercise (or to cause the Collateral Agent to exercise) any rights or remedies
with respect to the 2014 Notes Separate Collateral and (b) the Bank Agent
(acting in accordance with the Bank Credit Agreement) shall have the right at
any time to exercise (or to cause the Collateral Agent to exercise) any rights
or remedies with respect to the Bank Separate Collateral. If the Collateral
Agent shall request instructions from the Required Secured Parties with respect
to any act or action (including failure to act) in connection with this
Agreement or the Shared Security Documents, the Collateral Agent shall be
entitled to refrain from such act or taking such action unless and until it
shall have received instructions from the Required Secured Parties and to the
extent requested, appropriate indemnification in respect of actions to be
taken, and the Collateral Agent shall not incur liability to any Secured Party
or any other Person by reason of so refraining. Without limiting the foregoing,
no Secured Party shall have any right of action whatsoever against the
Collateral Agent as a result of the Collateral Agent acting or refraining from
acting (i) hereunder in accordance with the instructions of the Required
Secured Parties or (ii) under any Shared Security Document as provided for
therein.
2.4.2 Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent is authorized, but not obligated, (a) to take
any action reasonably required to perfect or continue the perfection of the
Liens on the Shared Collateral for the benefit of the Secured Parties,
including entering into any Security Document with respect to Shared Collateral
or any other document in connection with a Security Document, as secured party
or beneficiary, as applicable, on behalf of the applicable Secured Parties (and
each Project Credit Party, on behalf of the Secured Parties it represents,
agrees to be bound by such documents to the extent the Collateral Agent has
entered into such documents on behalf of such parties), and (b) when
instructions from the Required Secured Parties have been requested by the
Collateral Agent but have not yet been received, to take any action which the
Collateral Agent, in good faith, believes to be reasonably required to promote
and protect the interests of the Secured Parties in the Shared Collateral;
provided that once instructions have been received, the actions of the
Collateral Agent shall be governed thereby and the Collateral Agent shall not
take any further action which would be contrary thereto. In addition, once the
Collateral Agent has been instructed by the Required Secured Parties to
commence enforcement proceedings under the Shared Security Documents, the
Collateral Agent shall in good faith and in the manner reasonably believed by
the Collateral Agent to be in the interest of the Secured Parties, promptly
commence and diligently pursue to completion the exercise of all rights and
remedies available to the Collateral Agent under the Shared Security Documents,
subject to the Collateral Agent's right to request instructions and/or
indemnities from the Required Secured Parties as provided in Sections 2.4.1 and
2.4.3.
2.4.3 Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent shall not be required to take any action that
exposes or, in the good faith judgment of the Collateral Agent may expose, the
Collateral Agent or its officers, directors, agents or employees to personal
liability unless the Collateral Agent shall be adequately indemnified as
provided herein or that is, or in the good faith judgment of the Collateral
Agent may be, contrary to the Shared Security Documents or applicable Legal
Requirements. In addition, none of the provisions of this Agreement shall be
construed to require the Collateral Agent to expend or risk its own funds or
otherwise to incur any personal financial liability in the performance of any
of its duties hereunder or under the Shared Security Documents, or in the
exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or inadequate indemnity against such
risk or liability is not reasonably assured to it.
2.5 RELIANCE. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or facsimile message,
cablegram, order or other document or telephone message signed, sent or made by
a Person believed by it to be authorized to sign, send or make the same, and,
with respect to all legal matters pertaining to this Agreement or the Shared
Security Documents and its duties hereunder and thereunder, upon the advice of
counsel selected by it.
2.6 INDEMNIFICATION. To the extent the Collateral Agent is not
reimbursed and indemnified by the Company or any other member of the Company
Group under the respective Shared Security Documents to which they are a party,
the Collateral Agent shall be entitled to reimbursement from the proceeds of
the Shared Collateral, but shall have no claim against any Secured Party for
reimbursement or indemnification.
2.7 COLLATERAL AGENT IN ITS INDIVIDUAL CAPACITY. The Collateral
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Company or any other member of the
Company Group or any of their Affiliates as if it were not performing the
duties specified herein or in the Shared Security Documents, and may accept
fees and other consideration from the Company or any other member of the
Company Group or any of their Affiliates for services in connection with the
Bank Credit Agreement, the other Bank Credit Documents and otherwise without
having to account for the same to the Secured Parties.
2.8 HOLDERS. The Collateral Agent may deem and treat the registered
owner of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the
case may be, shall have been filed with the Collateral Agent. Any request,
authority or consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the registered owner of any
Note shall be final and conclusive and binding on any subsequent holder,
transferee, assignee or endorsee, as the case may be, of such Note or any Note
issued in exchange therefor.
2.9 RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
2.9.1 The Collateral Agent may resign from the performance of all
of its functions and duties under the Shared Security Documents at any time by
giving 30 days' prior written notice to the Company, the 2014 Notes Indenture
Trustee and the Bank Agent and may be removed at any time, with or without
cause, (i) by the 2014 Notes Indenture Trustee and the Bank Agent, acting
together or (ii) in the event that the Deutsche Bank Trust Company Americas is
no longer the Bank Agent, then by the Administrative Agent under the Bank
Credit Facility at such time.
2.9.2 Upon receiving notice of any such resignation or removal, a
successor Collateral Agent shall be appointed by the 2014 Notes Indenture
Trustee and the Bank Agent, acting together; provided, however, that such
successor Collateral Agent shall be (a) a bank or trust company having a
combined capital and surplus of at least $500,000,000 subject to supervision or
examination by a federal or state banking authority; and (b) authorized under
the laws of the jurisdiction of its incorporation or organization to assume the
functions of the Collateral Agent; and (c) not disqualified to act in such
capacity pursuant to applicable gaming laws and regulations. If the appointment
of such successor shall not have become effective (as provided in Section
2.9.3) within such 30 day period after the Collateral Agent shall have given
such notice, then the 2014 Notes Indenture Trustee, the Bank Agent either or
both (acting together) may petition a court of competent jurisdiction for the
appointment of a successor Collateral Agent. Such court shall, after such
notice as it may deem proper, appoint a successor Collateral Agent meeting the
qualifications specified in this Section 2.9.2. The Secured Parties hereby
consent to such petition and appointment so long as such criteria are met.
2.9.3 The resignation of a Collateral Agent shall become effective
on the date specified in the notice provided in accordance with Section 2.9.1.
The removal of a Collateral Agent shall become effective only upon the
execution and delivery of such documents or instruments as are necessary to
transfer the rights and obligations of the Collateral Agent under the Shared
Security Documents and the recording or filing of such documents, instruments
or financing statements as may be necessary to maintain the priority and
perfection of any security interest granted by any Shared Security Document.
Copies of each such document or instrument shall be delivered to each Project
Credit Party. The appointment of a successor Collateral Agent pursuant to
Section 2.9.2 shall become effective upon the acceptance of such appointment
(and execution by such successor of the documents, instruments or financing
statements referred to above) and such successor Collateral Agent shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent and shall be deemed to be the "Collateral Agent"
hereunder.
2.9.4 After any resignation or removal hereunder of the Collateral
Agent, the indemnification provisions of this Agreement shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it in
connection with its agency hereunder while it was Collateral Agent.
3. COLLATERAL, PRIORITY OF LIENS, SUBORDINATION AND RELEASE.
3.1 LIENS AND SECURITY INTERESTS. The Project Credit Parties agree
that each Secured Party shall have the benefit of the following Liens on and
security interests in the Collateral:
3.1.1 COLLATERAL FOR BANK SECURED OBLIGATIONS. The Bank Secured
Obligations shall be secured by a first priority lien on and security interest
in the Bank Separate Collateral and the Shared Collateral, which first priority
lien and security interest in the Shared Collateral shall be pari passu in
priority with the lien and security interest in the Shared Collateral securing
the 2014 Notes Secured Obligations and the Obligations securing any Permitted
Additional Senior Secured Debt Agreement, subject to the sharing of proceeds
provisions hereof.
3.1.2 COLLATERAL FOR 2014 NOTES SECURED OBLIGATIONS. The 2014
Notes Secured Obligations shall be secured by a first priority lien on and
security interest in the 2014 Notes Separate Collateral and the Shared
Collateral, which first priority lien and security interest in the Shared
Collateral shall be pari passu in priority with the lien and security interest
in the Shared Collateral securing the Bank Secured Obligations and the
Obligations securing any Permitted Additional Senior Secured Debt Agreement,
subject to the sharing of proceeds provisions hereof.
3.1.3 COLLATERAL FOR OTHER PERMITTED SENIOR SECURED DEBT. The
Permitted Additional Senior Secured Debt Agreements shall be secured by a first
priority lien on and security interest in the Shared Collateral, which first
priority lien and security interest in the Shared Collateral shall be pari
passu in priority with the lien and security interest in the Shared Collateral
securing the Bank Secured Obligations and the 2014 Notes Secured Obligations,
subject to the sharing of proceeds provisions hereof.
3.1.4 COLLATERAL FOR SECOND LIEN SECURED OBLIGATIONS. The
Second Lien Secured Obligations shall be secured by a second priority lien on
and security interest in the Shared Collateral, which second priority lien and
security interest in the Shared Collateral shall be subject and subordinate to
the lien and security interest in the Shared Collateral securing the First Lien
Secured Obligations.
3.2 SEPARATE COLLATERAL. The 2014 Notes Separate Collateral secures
only the 2014 Notes Secured Obligations, and no other Project Credit Party
shall have any Liens thereon or any security interest therein. The Bank
Separate Collateral secures only the Bank Secured Obligations, and no other
Project Credit Party shall have any Liens thereon or any security interest
therein.
3.3 CONFIRMATION OF LIENS. Each Project Credit Party hereby
confirms and agrees that the Liens and security interests held by or for the
benefit of each Secured Party in the Collateral, as provided for in the
preceding provisions of this Section 3, shall secure all Obligations of the
Company Group and any Person within the Company Group now or hereafter owing to
each Secured Party in connection with the applicable Facility Agreement
throughout the term of this Agreement, in each case with the priority specified
in Section 3.1, notwithstanding (a) the availability of any other collateral to
any Secured Party, (b) the execution, delivery, recording, filing or perfection
of any of the Security Documents, the order of such execution, delivery,
recording, filing or perfection or the priorities which would otherwise result
therefrom, (c) the fact that any lien or security interest created by any of
the Security Documents, or any claim with respect thereto, is or may be
subordinated, avoided or disallowed in whole or in part under any Bankruptcy
Law, (d) the taking of possession of any Shared Collateral by any Project
Credit Party or (e) any other matter whatsoever. All provisions of this
Agreement, including but not limited to, all matters relating to the creation,
validity, perfection, priority, subordination and release of the Liens and
security interests intended to be created by the Shared Security Documents and
all provisions regarding the allocation and priority of payments with respect
to any Class of Secured Obligations shall survive any Insolvency or Liquidation
Proceeding and be fully enforceable by and against each Project Credit Party
during any such proceeding. In the event of an Insolvency or Liquidation
Proceeding, each Project Credit Party further confirms and agrees that the
Obligations due and outstanding under and with respect to each Class of Secured
Obligations shall include all principal, additional advances permitted
thereunder, Protective Advances made by such Project Credit Party and the
Secured Parties under its Facility Agreement, interest, default interest, LIBOR
breakage and swap breakage, post petition interest and all other amounts due
thereunder, for periods before and for periods after the commencement of any
such proceedings, even if the claim for such amounts is disallowed pursuant to
applicable law, and all proceeds from the sale or other disposition of the
Collateral shall be paid to the Secured Parties in the order and priority
provided for in this Section 3 notwithstanding the disallowance of any such
claim or the invalidity or subordination of any lien on or security interest in
the Collateral under applicable law.
4. RIGHTS AND LIMITATION OF ACTIONS WITH RESPECT TO COLLATERAL.
4.1 RIGHTS AND LIMITATIONS APPLICABLE TO SECOND LIEN SECURED
PARTIES.
4.1.1 Subject to Section 4.1.2, at any time prior to the
Discharge of all First Lien Secured Obligations, the Second Lien Secured
Parties shall not, and shall not authorize or direct the Collateral Agent or
any other Person acting for them or to, exercise any right or remedy with
respect to any Collateral (including any right of set-off) or take any action
to enforce, collect or realize upon any Collateral, including, without
limitation, any right, remedy or action to:
(a) take possession of or control over any Collateral;
(b) exercise any collection rights in respect of any
Collateral;
(c) exercise any right of set-off against any property
subject to any lien securing any First Lien Secured
Obligations;
(d) foreclose upon any Collateral or take or accept any
transfer of title in lieu of foreclosure upon any
Collateral;
(e) enforce any claim to the proceeds of insurance upon
any Collateral;
(f) deliver any notice, claim or demand relating to the
Collateral to any Person (including any securities
intermediary, depositary bank or landlord) in the
possession or control of any Collateral or acting as
bailee, custodian or agent for any of the First Lien
Secured Obligations in respect of any Collateral;
(g) otherwise enforce any remedy available upon default
for the enforcement of any lien upon any Collateral;
(h) deliver any notice or commence any proceeding for
any of the foregoing purposes;
(i) seek relief in any Insolvency or Liquidation
Proceeding permitting it to do any of the foregoing;
or
(j) subject to Section 4.2.3, retain any proceeds of
accounts and other obligations receivable paid to it
directly by any account debtor.
4.1.2 Notwithstanding Section 4.1.1, any right or remedy set
forth in clauses (a) through (j) thereof may be exercised and any such action
may be taken, authorized or instructed by the Second Lien Secured Parties:
(a) if all the First Lien Secured Obligations are
purchased by a Person entitled to purchase the
outstanding First Lien Secured Obligations upon
exercise of the Default Purchase Option; or
(b) as necessary to redeem any Collateral in a
creditor's redemption permitted by law or to deliver
(subject to the prior Discharge of the First Lien
Secured Obligations) any notice or demand necessary
to enforce any right to claim, take or receive
proceeds of Collateral remaining after the Discharge
of the First Lien Secured Obligations in the event
of foreclosure or other enforcement of any lien
securing the First Lien Secured Obligations, so long
as the enforcement of any such lien securing the
First Lien Secured Obligations is not adversely
affected or delayed.
4.1.3 Notwithstanding Section 4.1.1, any right or remedy set
forth in clauses (a) through (j) thereof may be exercised and any such action
may be taken, authorized or instructed by the Second Lien Secured Parties:
(a) as necessary to perfect a lien upon any Shared
Collateral by any method of perfection except
through possession or control;
(b) if an Event of Default shall have occurred and be
continuing under any Permitted Additional Junior
Secured Debt Agreement, subject to all the other
provisions of this Agreement, as necessary to prove
(but not enforce) the Liens upon any Shared
Collateral securing the Second Lien Secured
Obligations or as necessary to preserve or protect
(but not enforce) the Liens upon any Shared
Collateral securing the Second Lien Secured
Obligations in any manner that is not adverse to the
grant, perfection, priority or enforcement of Liens
securing the First Lien Secured Obligations and does
not adversely affect or delay any exercise or
enforcement of the rights and remedies of the First
Lien Secured Parties; or
(c) if an Event of Default shall have occurred and be
continuing under any Permitted Additional Junior
Secured Debt Agreement, after obtaining the prior
written consent of the Project Credit Party
representing each Class of First Lien Secured
Obligations, which consent shall be subject to each
such Project Credit Party's sole discretion.
4.1.4 Nothing in this Agreement or any other Financing
Agreement shall:
(a) impair, as between the Company Group and the Second
Lien Secured Parties, the obligation of the Company
and all Guarantors, which is absolute and
unconditional, to pay principal of, premium and
interest, if any, on the Second Lien Secured
Obligations in accordance with the terms of the
applicable Second Lien Documents;
(b) affect the relative rights of the Second Lien
Secured Parties, collectively, vis a vis creditors
of the Company or any other member of the Company
Group (other than the First Lien Secured Parties);
or
(c) if an Event of Default shall have occurred and be
continuing under any Permitted Additional Junior
Secured Debt Agreement, restrict the right of the
Second Lien Secured Parties to ▇▇▇ for payments that
are then due and owing or accelerate the Second Lien
Secured Obligations; provided that in the event any
Second Lien Secured Party becomes a judgment Lien
creditor in respect of Collateral as a result of its
enforcement of its rights as an unsecured creditor
with respect to the Second Lien Secured Obligations,
such judgment Lien shall be subject to the terms of
this Agreement for all purposes (including in
relation to the First Lien Secured Obligations) as
the other Liens securing the Second Lien Secured
Obligations are subject to this Agreement.
4.2 RIGHTS AND LIMITATIONS APPLICABLE TO THE FIRST LIEN SECURED
PARTIES.
4.2.1 Subject to Sections 4.2.2 and 4.2.3, at all times until
Discharge of all First Lien Secured Obligations, the Collateral Agent at the
direction of the Required Secured Parties shall have the exclusive right to
manage, perform and enforce the terms of the First Lien Security Documents with
respect to all Shared Collateral and to exercise and enforce all privileges and
rights thereunder according to its discretion and exercise of its business
judgment, including, without limitation, the exclusive right to take the
actions enumerated in clauses (a) through (j) of Section 4.1.1. Without
limiting the generality of the foregoing, until Discharge of all First Lien
Secured Obligations:
(a) the Collateral Agent acting at the direction of the
Required Secured Parties will have the sole right to
adjust settlement of all insurance claims and
condemnation awards in the event of any covered
loss, theft or destruction or condemnation of any
Collateral and all claims under insurance
constituting Shared Collateral;
(b) subject to Section 5.14 of the Disbursement
Agreement, all proceeds of insurance on or
constituting Shared Collateral and all condemnation
awards resulting from a taking of any Shared
Collateral will inure to the benefit of, and will be
paid to, the First Lien Secured Parties; and
(c) the Project Credit Parties with respect of each
Class of Second Lien Secured Obligations will
cooperate, if necessary and as reasonably requested
by the Bank Agent, the 2014 Notes Indenture Trustee,
the representatives for the holders of any
Indebtedness under any Permitted Additional Senior
Secured Debt Agreement or the Collateral Agent, in
effecting the payment of insurance proceeds to the
First Lien Secured Parties as described above.
In connection therewith, each Second Lien Secured Party waives any
and all rights to affect the method or challenge the appropriateness of any
action by the First Lien Secured Parties and, subject to Sections 4.2.2 and
4.2.3, hereby consents to each of the First Lien Secured Parties exercising or
not exercising such rights and remedies as if no lien securing any Second Lien
Secured Obligations existed, except only that the Second Lien Secured Parties
reserve all rights granted by law (i) to request or receive notice of any sale
of Shared Collateral in foreclosure of any Lien securing the First Lien Secured
Obligations and (ii) to redeem any Shared Collateral or enforce any right to
claim, take or receive proceeds of Shared Collateral remaining after the
Discharge of the First Lien Secured Obligations as provided in Section
4.1.2(b).
4.2.2 (a) Notwithstanding Sections 4.1.1(c) and 4.2.1, the
Second Lien Secured Parties shall be permitted to receive and retain, free from
any Liens or security interests in favor of the First Lien Secured Parties, any
and all payments made thereto by or on behalf of the Company Group or any
Person within the Company Group, other than:
(i) payments which are made prior to the Discharge of
all First Lien Secured Obligations in breach of any
provision of the Bank Credit Agreement, the 2014
Notes Indenture any Permitted Additional Senior
Secured Debt Document or any First Lien Security
Documents;
(ii) payments of amounts prior to the Discharge of all
First Lien Secured Obligations which constitute
proceeds from the sale, transfer or other
disposition of any Collateral or proceeds from any
insurance policy or condemnation settlement or
award, in each case, in respect of any Collateral;
(iii) payments obtained or received prior to the Discharge
of all First Lien Secured Obligations in connection
with or as a result of any breach of Sections
4.1.1(a) through (j); and
(iv) payments obtained or received prior to the Discharge
of all First Lien Secured Obligations (A) at any
time after the representative for each Class of
Second Lien Secured Obligations has received written
notice (and prior to the rescission of such notice)
that a Blocking Event has occurred or (B) at any
time after the commencement of an Insolvency or
Liquidation Proceeding in respect of the Company
Group or any Person within the Company Group.
Any payment received by any Second Lien Secured Party (including, without
limitation, payments and prepayments made for application against the Second
Lien Secured Obligations and all other payments and deposits made pursuant to
any provision of any Permitted Additional Junior Secured Debt Agreement or any
Second Lien Security Document) prior to the Discharge of all First Lien Secured
Obligations in violation of any of clauses (i) through (iv) above shall be held
in trust for the benefit of the First Lien Secured Parties and shall be turned
over to the Collateral Agent promptly upon the request of the Collateral Agent
or any other First Lien Secured Party.
(b Notwithstanding the provisions of Section 4.2.1, after the
occurrence and during the continuance of an Event of Default under the Bank
Credit Agreement or the 2014 Notes Indenture or any other First Lien Secured
Obligation, but so long as a Blocking Event has not occurred, the Collateral
Agent, at the direction of the Required Secured Parties, may seize control of
the Accounts and the Accounts Collateral and issue instructions to the
Disbursement Agent or any Securities Intermediary under any Collateral Account
Agreement with respect to the Accounts and the Accounts Collateral.
4.3 NOTIFICATION OF EVENTS OF DEFAULT. Each Project Credit Party
hereby agrees, for the benefit of each other Project Credit Party, to use its
best efforts to provide written notice to each other Project Credit Party
within 10 Banking Days after obtaining actual knowledge of the occurrence or
assertion of an Event of Default under their respective Financing Agreements.
No Project Credit Party shall have any liability to the other for failing to
provide any such notice, but such release from liability shall not affect the
First Lien Secured Parties' rights and obligations under Section 4.2.2.
4.4 CERTAIN WAIVERS BY SECOND LIEN SECURED PARTIES. To the fullest
extent permitted by law, the Second Lien Secured Parties waive and agree not to
assert or enforce at any time prior to the Discharge of the First Lien Secured
Obligations:
(a) any right of subrogation to the rights or interests
of the First Lien Secured Parties or any claim or
defense based upon impairment of any such right of
subrogation;
(b) any right of marshalling accorded to a junior
lienholder, as against a priority lienholder, under
equitable principles; and
(c) any statutory right of appraisal or valuation
accorded to a junior lienholder in a proceeding to
foreclose a senior lien;
in each case, that otherwise may be enforceable in respect of any lien securing
any of the Second Lien Secured Obligations as against the First Lien Secured
Parties.
5. RIGHTS AND LIMITATIONS WITH RESPECT TO AMENDMENTS, WAIVERS AND
OTHER ACTIONS UNDER FACILITY AGREEMENTS.
5.1 RIGHTS AND LIMITATIONS APPLICABLE TO SECOND LIEN SECURED
PARTIES. Prior to the Discharge of the First Lien Secured Obligations, the
Second Lien Secured Parties will not enter into, authorize or direct, any
amendment of or supplement to any Second Lien Security Document relating to any
Collateral that would make such document inconsistent in any material respect
with the comparable provisions of the First Lien Security Document upon such
Collateral. For purposes of the foregoing, any provision granting rights or
powers to any Second Lien Secured Party that are not granted to the First Lien
Secured Parties will constitute a material inconsistency.
5.2 RIGHTS AND LIMITATIONS APPLICABLE TO THE FIRST LIEN SECURED
PARTIES.
5.2.1 The First Lien Secured Parties may at any time and from
time to time, without the consent of or notice to any Second Lien Secured
Party, without incurring any responsibility or liability to any Second Lien
Secured Party and without in any manner prejudicing, affecting or impairing the
ranking or priority of the Liens and the security interests in the Collateral
created by the First Lien Security Documents or the rights and obligations of
the Project Credit Parties hereunder, take (or instruct the Collateral Agent to
take) any of the following:
(a) make loans and advances to the Company Group or any Person
within the Company Group or issue, guaranty or obtain
letters of credit for account of the Company Group or any
Person within the Company Group or otherwise extend credit
to the Company Group or any Person within the Company Group
in any amount and on any terms, whether pursuant to a
commitment or as a discretionary advance and whether or not
any default or Event of Default or failure of condition is
then continuing;
(b) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, compromise,
accelerate, extend or, subject to Section 10.14, refinance
any First Lien Secured Obligations or any agreement,
guaranty, lien or obligation of the Company Group or any
Person within the Company Group or any other Person in any
manner related thereto, or otherwise amend, supplement or
change in any manner any First Lien Secured Obligations or
Liens securing First Lien Secured Obligations or any such
agreement, guaranty, lien or obligation;
(c) increase or reduce the amount of any First Lien Secured
Obligation or the interest, premium, fees or other amounts
payable in respect thereof;
(d) release or discharge any First Lien Secured Obligation or
any guaranty thereof or any agreement or obligation of the
Company Group or any Person within the Company Group or any
other Person with respect thereto;
(e) take or fail to take any first priority lien or any other
collateral security for any First Lien Secured Obligation
or take or fail to take any action which may be necessary
or appropriate to ensure that any lien securing a First
Lien Secured Obligation or any other lien upon any property
is duly enforceable or perfected or entitled to priority as
against any other lien or to ensure that any proceeds of
any property subject to any lien are applied to the payment
of any First Lien Secured Obligation or any other
obligation secured thereby;
(f) release, discharge or permit the lapse of any or all Liens
securing a First Lien Secured Obligation or any other Liens
upon any property at any time;
(g) exercise or enforce, in any manner, order or sequence, or
fail to exercise or enforce, any right or remedy against
the Company or any Guarantor or any collateral security or
any other Person or property in respect of any First Lien
Secured Obligation or any lien securing any First Lien
Secured Obligation or any right or power under the First
Lien Security Documents and hereunder and apply any payment
or proceeds of collateral in any order of application; or
(h) sell, exchange, release, foreclose upon or otherwise deal
with any property that may at any time be subject to any
lien securing any First Lien Secured Obligation.
5.2.2 No (a) exercise, delay in exercising or failure to
exercise any right arising under the First Lien Security Documents or this
Agreement, (b) act or omission of any First Lien Secured Party in respect of
the Company Group or any Person within the Company Group or any other Person or
any collateral security for any First Lien Secured Obligation or any right
arising under the First Lien Security Documents and hereunder, (c) change,
impairment, or suspension of any right or remedy of any First Lien Secured
Party, or (d) other act, failure to act, circumstance, occurrence or event,
including, without limitation, the acts listed in Section 5.2.1, which, but for
this provision, would or could act as a release or exoneration of the
agreements or obligations of any Second Lien Secured Party hereunder shall in
any way affect, decrease, diminish or impair any of such agreements or
obligations, including, without limitation, the lien subordination provisions
and the standstill obligations set forth in Sections 3.1 and 4.1.
5.3 WAIVERS AND DEFERRALS OF PAYMENTS. Any Project Credit Party
may, without the consent of the other Project Credit Parties, defer any
payments due under its Class of Secured Obligations or waive any provisions
thereof.
5.4 LIMITATION OF LIABILITY
5.4.1 Except as expressly set forth herein (and, with respect
to any rights or obligations among Secured Parties within the same Class, in
their respective Facility Agreements), no Secured Party will have any duty,
express or implied, fiduciary or otherwise, to any other Secured Party.
5.4.2 To the maximum extent permitted by law, each Secured
Party waives any claim it may have against any other Secured Party with respect
to or arising out of any action or failure to act or any error of judgment or
negligence on the part of any other Secured Party or their respective
directors, officers, employees or agents with respect to any exercise of rights
or remedies in respect of the Secured Obligations or under the Shared Security
Documents or any transaction relating to the Collateral. Neither any Secured
Party nor any of their respective directors, officers, employees or agents will
be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so, except to the extent arising out of the gross
negligence or willful misconduct of such Secured Party or any of their
respective directors, officers, employees or agents, or will be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Person within the Company Group or upon the request of any other Secured
Party or any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof.
5.4.3 Each Secured Party (subject to its respective Facility
Agreement) shall be responsible for keeping itself informed of the financial
condition of the Company Group and all other circumstances bearing upon the
risk of nonpayment of any Secured Obligations. Except as set forth in Section
4.3, no Project Credit Party shall have any duty to advise any other Project
Credit Party of information regarding such condition or circumstances or as to
any other matter. Subject, with respect to any rights and obligations among
Secured Parties of the same Class, to the provisions of their respective
Facility Agreements, if any Secured Party, in its sole discretion, undertakes
at any time or from time to time to provide any such information to any other
Secured Party, it shall be under no obligation to provide any similar
information on any subsequent occasion, to provide any additional information,
or undertake any investigation, or to disclose any information which, pursuant
to accepted or reasonable commercial finance practice, it wishes to maintain
confidential.
6. INSOLVENCY OR LIQUIDATION PROCEEDINGS
6.1 RIGHT TO FILE INVOLUNTARY BANKRUPTCY. Notwithstanding any
other provision of this Agreement to the contrary, any Project Credit Party
shall be entitled, at any time and at its sole discretion, to initiate or join
as a petitioning creditor in an involuntary Insolvency or Liquidation
Proceeding against any Person within the Company Group.
6.2 CERTAIN AGREEMENTS AND CONSENTS BY SECOND LIEN SECURED sPARTIES.
6.2.1 At no time prior to the Discharge of all First Lien
Secured Obligations shall any Second Lien Secured Party:
(a) request judicial relief in an Insolvency or Liquidation
Proceeding or in any other court, that would hinder, delay,
limit or prohibit the exercise or enforcement of any right or
remedy otherwise available to the holders of First Lien
Secured Obligations that would limit, invalidate, avoid or
set aside any lien securing the First Lien Secured
Obligations or subordinate the lien securing the First Lien
Secured Obligations to the Liens securing the Second Lien
Secured Obligations or grant the Liens securing the Second
Lien Secured Obligations equal ranking to the Liens securing
the First Lien Secured Obligations;
(b) oppose or otherwise contest any motion for relief from the
automatic stay or from any injunction against foreclosure or
enforcement of Liens securing the First Lien Secured
Obligations made by any holder of First Lien Secured
Obligations in any Insolvency or Liquidation Proceeding;
(c) oppose or otherwise contest any exercise by any holder of
First Lien Secured Obligations of the right to credit bid
First Lien Secured Obligations at any sale in foreclosure of
lien securing the First Lien Secured Obligations; or
(d) oppose or otherwise contest any other request for judicial
relief made in any court by any holder of First Lien Secured
Obligations relating to the enforcement of any lien securing
the First Lien Secured Obligations.
6.2.2 If, in any Insolvency or Liquidation Proceeding prior to
the Discharge of all First Lien Secured Obligations, the First Lien Secured
Parties:
(a) consent to any order for use of cash collateral for payment
of (i) expenses reasonably necessary or appropriate for the
conduct of the Phase I Project and/or the Phase II Project or
for the preservation of the Collateral, (ii) debt secured by
Liens upon the Shared Collateral that are senior to the Liens
securing the Second Lien Secured Obligations or (iii)
administrative expenses arising in connection with the
Insolvency or Liquidation Proceeding;
(b) consent to any order granting any priming lien, replacement
lien, cash payment or other relief on account of First Lien
Secured Obligations as adequate protection (or its
equivalent) for the interests of the First Lien Secured
Parties in property subject to the Liens securing the First
Lien Secured Obligations in connection with any order for use
of cash collateral; or
(c) consent to any order relating to any sale of assets of any
Person within the Company Group and providing, to the extent
the sale is to be free and clear of Liens, that all such
Liens shall attach to the proceeds of the sale, and, in
connection therewith, consent to and support before the court
any request for Credit Bid Rights made by any Second Lien
Secured Party (except that the First Lien Secured Parties
need not admit, consent to or support any valuation of the
Collateral alleged in support of the allowance of any secured
claim based upon the Liens securing the Second Lien Secured
Obligations),
then, so long as the First Lien Secured Parties do not oppose or
otherwise contest any request made by any Second Lien Secured Party
(which may be made only if, pursuant to any such order, the First
Lien Secured Parties are, or are to be, granted a lien upon any
property) for the grant to a representative of behalf of, and for
the benefit of, the Second Lien Secured Parties and as adequate
protection (or its equivalent) for such representative's interest
in the Collateral pursuant to the Liens securing the applicable
Second Lien Secured Obligations of a junior lien upon such property
that is co-extensive in all respects with, but subordinated (as set
forth herein) in all respects to, all Liens securing the First Lien
Secured Obligations upon such property and any such lien granted to
the First Lien Secured Parties pursuant to such order,
the Second Lien Secured Parties will not oppose or otherwise contest the entry
of such order, except that any such order relating to a sale of assets may be
opposed or otherwise contested by them (x) as necessary to secure the grant of
Credit Bid Rights or (y) based on any ground that may be asserted by a holder
of unsecured claims (but not except for Credit Bid Rights, on any grounds
arising from or relating to any lien securing the Second Lien Secured
Obligations or any secured claim or secured creditor rights based on any lien
securing the Second Lien Secured Obligations).
6.2.3 If, in any Liquidation or Insolvency Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the
reorganized debtor are distributed pursuant to a plan of reorganization or
similar dispositive restructuring plan, on more than one Class of Secured
Obligations, then, to the extent the debt obligations distributed on such
account are secured by Liens upon the same property, the provisions of this
Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt
obligations.
6.2.4 The Second Lien Secured Parties will not assert or
enforce, at any time prior to the Discharge of the First Lien Secured
Obligations, any claim under ss.506(c) of the United States Bankruptcy Code
with respect to the Liens securing the First Lien Secured Obligations for costs
or expenses of preserving or disposing of any Shared Collateral.
6.2.5 If, for purposes of valuation of the secured claims of
the First Lien Secured Parties in any Insolvency or Liquidation Proceeding, the
First Lien Secured Parties determine, and the Collateral Agent or any other
First Lien Secured Party notifies any Project Credit Party on behalf of any
Class of Second Lien Secured Obligations, that the Collateral should be valued
as of any particular time in the period from the date of commencement of such
Insolvency or Liquidation Proceeding to the date of confirmation of any plan of
reorganization or other dispositive restructuring plan therein, then the Second
Lien Secured Parties shall not oppose or otherwise contest that the date as of
which such secured claims should be valued is the date chosen by the First Lien
Secured Parties, but the Second Lien Secured Parties shall remain free (a) to
contest without any restriction any valuation claimed or asserted by the First
Lien Secured Parties as of such date and (b) to assert and seek relief
determining that the Collateral should be valued at another date if a valuation
at the other date would have the effect of placing a higher value upon the
Collateral, taken as a whole. Notwithstanding the foregoing, the Second Lien
Secured Parties shall not have the right to assert the lack of adequate
protection of their Liens or the collateral securing the Second Lien Secured
Obligations as a basis for opposing a motion or other relief sought in any
Insolvency or Liquidation Proceeding and approved by the First Lien Secured
Parties.
6.2.6 If, in connection with the approval by creditors of any
plan of reorganization or other dispositive restructuring plan in any
Insolvency or Liquidation Proceeding, either:
(a) secured claims based upon the Second Lien Secured Obligations
are classified in the same class of secured claims as secured
claims based upon the First Lien Secured Obligations; or
(b) secured claims based upon the Second Lien Secured Obligations
are classified in a separate class from secured claims based
upon the First Lien Secured Obligations and are treated under
such plan as an impaired secured class, and such plan could
not lawfully be confirmed or approved by the court in such
Insolvency or Liquidation Proceeding unless the class of
secured claims based upon the Second Lien Secured Obligations
votes, as a class or as classes, to accept such plan;
then the holders of secured claims based upon the Second Lien Secured
Obligations shall not vote such secured claims to accept such plan if: (i) the
Collateral Agent or any other First Lien Secured Party notifies the holders of
such secured claims (in such manner and to such Person at such addresses as
each Project Credit Party on behalf of any Class of Second Lien Secured
Obligations may direct), at least 10 Banking Days before ballots are due in the
voting on such plan, that fewer than the holders of two-thirds in amount of
secured claims based upon the Bank Secured Obligations or fewer than the
holders of two-thirds in amount of secured claims based upon the 2014 Notes
Secured Obligations or fewer than the holders of two-thirds in amount of
secured claims based upon Obligations under any Permitted Additional Senior
Secured Debt Agreement will vote, in each case as a separate class (or as if
they were a separate class), to accept such plan, (ii) such notice is not
withdrawn by the Collateral Agent or any other First Lien Secured Party by
written notice to such Project Credit Party (or, if required by law, to the
holders of such secured claims) and (iii) such plan is not accepted by the
holders of secured claims based upon the First Lien Secured Obligations voting
as a separate class (or as if they were a separate class).
The Project Credit Party on behalf of each Class of Second Lien
Secured Obligations shall provide the Collateral Agent with such information as
may be available to such Project Credit Party as to the names and notice
addresses of the holders of secured claims based upon such Class of Second Lien
Secured Obligations. The notice described in clause (i) of the preceding
paragraph shall be conclusively deemed sufficiently given if mailed by ordinary
mail, postage prepaid, to such names and addresses. No ballot voting a secured
claim based upon any of the Second Lien Secured Obligations shall be delivered
in respect of any such plan by any holder of secured claims based upon any of
the Second Lien Secured Obligations prior to the last date on which the notice
described in clause (i) may be given. Any ballot cast in violation of this
Section 6.2.6 will be invalid.
6.3 AVOIDANCE OF BANK SECURED OBLIGATIONS IN BANKRUPTCY. If (a) any
lien securing a First Lien Secured Obligation is avoided in any Insolvency or
Liquidation Proceeding, (b) by reason of such avoidance, there is a resultant
reduction (a "FIRST LIEN SECURED CLAIM REDUCTION") in the amount of the secured
claims (without regard to unsecured claims) that, but for such avoidance, would
have been allowed in such Insolvency or Liquidation Proceeding on account of
claims based upon First Lien Secured Obligations, and (c) a distribution is
made in such Insolvency or Liquidation Proceeding on account of secured claims
(without regard to any unsecured claims) based upon the Second Lien Secured
Obligations, whether such distribution is made in cash, securities or
otherwise, or any Second Lien Secured Party or representative of any Second
Lien Secured Party receives any proceeds from the foreclosure or other
enforcement of the Liens securing any of the Second Lien Secured Obligations
(such distribution or receipt, a "SECOND LIEN RECOVERY"), then a portion of
such Second Lien Recovery (the "SHAREABLE RECOVERY") determined by multiplying:
(i) a percentage by dividing (A) the aggregate amount
allowed in such Insolvency or Liquidation Proceeding
on account of all unsecured claims based upon First
Lien Secured Obligations (after giving effect to
such avoidance) by (B) the aggregate amount allowed
in such Insolvency or Liquidation Proceeding on
account of all unsecured claims based upon First
Lien Secured Obligations (after giving effect to
such avoidance) and all secured and unsecured claims
based upon Second Lien Secured Obligations; by
(ii) the lesser of (A) the amount of such First Lien
Secured Claim Reduction and (B) the amount of such
Second Lien Recovery,
shall be received and held by the applicable Second Lien Secured Party or
representative of Second Lien Secured Party subject to an option, exercisable
solely by the Collateral Agent at the direction of the Required Secured Parties
by written notice delivered to such Second Lien Secured Party or representative
no later than the 20th Banking Day after the latest of:
(1) the date on which such Second Lien Recovery is received;
(2) the date on which the amount (if any) of secured
claims and unsecured claims based on the First Lien
Secured Obligations and the Second Lien Secured
Obligations are allowed in such Insolvency or
Liquidation Proceeding; and
(3) the date on which the amount of such First Lien
Secured Claim Reduction is determined,
to exchange the Shareable Recovery (in the form received, with any interest
accrued thereon) for an equivalent amount (net of any such accrued interest) of
unsecured claims allowed in such Insolvency or Liquidation Proceeding based
upon First Lien Secured Obligations or for any substantially contemporaneous
distribution (exchanged in the form received, with any interest accrued
thereon) made in such Insolvency or Liquidation Proceeding on account of such
equivalent amount of unsecured claims based upon First Lien Secured
Obligations. Such exchange shall be made by each party thereto without any
recourse, representation, warranty or liability whatsoever.
6.4 NO OTHER RESTRICTIONS ON SECOND LIEN SECURED PARTIES.
Notwithstanding any other provision of this Agreement to the contrary, except
as expressly provided herein, the Second Lien Secured Parties shall not, in any
Insolvency or Liquidation Proceeding, be restricted in voting any secured
claims based upon the Second Lien Secured Obligations and will not be in any
respect restricted in voting any unsecured claims based upon the Obligations
outstanding under any Second Lien Documents.
7. DEFAULT PURCHASE OPTION. Each Project Credit Party on behalf of
each Class of First Lien Secured Obligations hereby grants the Project Credit
Parties on behalf of each Class of Second Lien Secured Obligations the right
(without any obligation) to purchase, at any time during the period that begins
when all commitments to extend credit constituting all First Lien Secured
Obligations have terminated and all First Lien Secured Obligations have matured
(whether at the stated maturity, upon acceleration or otherwise, including by
virtue of the commencement of an Insolvency or Liquidation Proceeding) and ends
on the 45th day after receipt by the Project Credit Parties on behalf of each
Class of Second Lien Secured Obligations of written notice of such maturity
from the Project Credit Party on behalf of the applicable First Lien Secured
Obligations, all, but not less than all, of the principal of and interest on
and all prepayment or acceleration penalties and premiums in respect of all
First Lien Secured Obligations outstanding at the time of purchase and all
other First Lien Secured Obligations then outstanding, together with all Liens
securing such First Lien Secured Obligations and all guarantees and other
supporting obligations relating to such First Lien Secured Obligations:
(a) for a purchase price equal to 100% of the principal amount
and accrued interest outstanding on the First Lien Secured
Obligations on the date of purchase (including fees and
interest accruing after the commencement of a Liquidation or
Insolvency Proceeding at the rate provided for in any
Facility Agreement related to any First Lien Secured
Obligation (regardless of whether such item is an allowed
claim under applicable law) and any costs of collection) plus
all other First Lien Secured Obligations (including any LIBOR
breakage costs but excluding any prepayment or acceleration
penalty or premium) then unpaid;
(b) with such purchase price payable in cash on the date of
purchase against transfer to an Eligible Purchaser or its
nominee or transferee (without recourse and without any
representation or warranty whatsoever, whether as to the
enforceability of any First Lien Secured Obligations or the
validity, enforceability, perfection, priority or sufficiency
of any lien securing or guarantee or other supporting
obligation for any First Lien Secured Obligations or as to
any other matter whatsoever, except only the representation
and warranty that the transferor is transferring free and
clear of all Liens and encumbrances (other than that will be
satisfied and discharged concurrently with the closing of the
purchase from the proceeds of the purchase price), and has
good right to convey whatever claims and interests it
purports to have in respect of First Lien Secured Obligations
and any such Liens, guarantees and supporting obligations
pursuant to the applicable Facility Agreement and/or Shared
Security Documents);
(c) with such purchase accompanied by a deposit of cash
collateral under the dominion and control of the Collateral
Agent on behalf of the First Lien Secured Parties in an
amount equal to 105% of the undrawn amount of each letter of
credit then outstanding as Bank Secured Obligations and each
letter of credit then outstanding as any other First Lien
Secured Obligations, as security for the additional
obligation of the purchaser to purchase, at par plus accrued
interest, the reimbursement obligation in respect of each
such letter of credit as and when each such letter of credit
is funded and to pay all Bank Secured Obligations or any
other First Lien Secured Obligations, as applicable, then
outstanding with respect to each such letter of credit; and
(d) pursuant to an Assignment and Acceptance in the form of
Exhibit E to the Bank Credit Agreement and otherwise
consistent with this Section 7.
8. APPLICATION OF PROCEEDS OF SHARED COLLATERAL.
8.1 APPLICATION OF PROCEEDS GENERALLY. All monies collected by the
Collateral Agent or any other Secured Party (i) in connection with an Event of
Loss, to the extent required to be used to prepay the Secured Obligations in
accordance with the Facility Agreements (provided that any proceeds from an
Event of Loss received by the Collateral Agent which are to be applied pursuant
to the Disbursement Agreement to repair or restore the Projects shall be
promptly delivered by the Collateral Agent to the Disbursement Agent), or (ii)
upon any sale or other disposition of any Shared Collateral pursuant to the
enforcement of any of the Shared Security Documents with respect to Shared
Collateral or the exercise of any of the remedial provisions thereof, together
with all other monies received by the Collateral Agent or any other Secured
Party hereunder or under the Shared Security Documents with respect to Shared
Collateral as a result of any such enforcement or the exercise of any such
remedial provisions or as a result of any distribution of any Shared Collateral
upon the bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding involving the readjustment of the
obligations and indebtedness of any Person within the Company Group, or the
application of any Shared Collateral to the payment thereof or any distribution
of the Shared Collateral upon the liquidation or dissolution of any Person
within the Company Group, or the winding up of the assets or business of any
Person within the Company Group, or any distribution made on or in connection
with any Facility Agreement or otherwise payable under any Shared Security
Documents with respect to Shared Collateral shall be applied as follows:
(a) first, to the payment of all amounts owing to the Collateral
Agent in the event of any proceeding for the collection or
enforcement of any indebtedness or payment obligations of any
member of the Company Group, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of
re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Shared Collateral,
or of any exercise by the Collateral Agent of its rights
hereunder or under the Shared Security Documents with respect
to Shared Collateral, together with reasonable attorneys'
fees and court costs;
(b) second, to the extent proceeds remain after the application
pursuant to the preceding clause (a), an amount equal to the
outstanding Primary Obligations shall be paid to the First
Lien Secured Parties as provided in Section 8.2, with each
Class of First Lien Secured Parties collectively receiving an
amount equal to their respective aggregate outstanding
Primary Obligations or, if the proceeds are insufficient to
pay in full all such Primary Obligations, their respective
Pro Rata Share of the amount remaining to be distributed;
(c) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) and (b), an amount
equal to the outstanding Secondary Obligations shall be paid
to the First Lien Secured Parties as provided in Section 8.2,
with each Class of First Lien Secured Parties collectively
receiving an amount equal to their respective aggregate
outstanding Secondary Obligations or, if the proceeds are
insufficient to pay in full all such Secondary Obligations,
their respective Pro Rata Share of the amount remaining to be
distributed;
(d) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (c), inclusive,
an amount equal to the outstanding Primary Obligations shall
be paid to the Second Lien Secured Parties as provided in
Section 8.2, with each Class of Second Lien Secured Parties
collectively receiving an amount equal to their respective
aggregate outstanding Primary Obligations or, if the proceeds
are insufficient to pay in full all such Primary Obligations,
their respective Pro Rata Share of the amount remaining to be
distributed;
(e) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (d), inclusive,
an amount equal to the outstanding Secondary Obligations
shall be paid to the Second Lien Secured Parties as provided
in Section 8.2, with each Class of Second Lien Secured
Parties collectively receiving an amount equal to their
respective aggregate outstanding Secondary Obligations or, if
the proceeds are insufficient to pay in full all such
Secondary Obligations, their respective Pro Rata Share of the
amount remaining to be distributed;
(f) sixth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (e), inclusive,
and following the termination of this Agreement pursuant to
the terms hereof, to the respective Person within the Company
Group under its respective Security Documents, or to whomever
may be lawfully entitled to receive such surplus.
8.2 CERTAIN TERMS. For purposes of this Agreement (a) "Pro Rata
Share" means, when calculating each Class of Secured Parties' respective
portions of any distribution or amount, the amount (expressed as a percentage)
equal to a fraction the numerator of which is the then aggregate unpaid amount
of the Primary Obligations or Secondary Obligations, as the case may be, owed
to such Class of Secured Parties and the denominator of which is the then
outstanding amount of all Primary Obligations or Secondary Obligations, as the
case may be, (b) "Primary Obligations" means all principal of, and interest on
and other extensions of credit under such Class of Secured Obligations; in each
case, including any Protective Advances made by any First Lien Secured Party to
preserve the Shared Collateral or to preserve its security interest in the
Shared Collateral but excluding indemnities, fees (including, without
limitation, attorneys' fees) and similar obligations and liabilities and (c)
"Secondary Obligations" means all Obligations owed to such Class of Secured
Parties other than Primary Obligations; provided, however, that the principal
amount will be calculated without duplication of the underlying obligation for
any guarantees.
8.3 SHARING OF NON-PRO RATA PAYMENTS. Each First Lien Secured Party
agrees that in the event any First Lien Secured Party shall obtain payment that
is not a Pro Rata Payment of any amounts due to it on or in respect of any
First Lien Secured Obligations and such payment arises from the items or
circumstances listed in items (a), (b) or (c) below, then such First Lien
Secured Party shall promptly remit to the Collateral Agent for distribution to
other First Lien Secured Parties the portion of such payment necessary to
ensure that each First Lien Secured Party shall have received a Pro Rata
Payment; provided that, if at such time redistribution of such payment in such
manner is inadvisable in the reasonable judgment of the Collateral Agent, then
at the request of such First Lien Secured Party, the Project Credit Parties
representing such First Lien Secured Parties shall promptly consult with each
other to determine whether there is a preferable manner to make equitable
adjustments (including the purchase by such First Lien Secured Parties) to
permit all First Lien Secured Parties to share such payment (net of expenses
incurred by the recipient First Lien Secured Party in obtaining or preserving
such payment) pro rata (in accordance with the definition of Pro Rata Payment).
If any such redistributed or shared payment is rescinded or must otherwise be
restored by the First Lien Secured Party who originally obtained such payment,
then each First Lien Secured Party which shares the benefit of such payment
shall return to such First Lien Secured Party its portion of the payment so
rescinded or required to be restored. The payments that are subject to the
foregoing provisions are those that: (a) arise from any exercise of a right of
setoff, banker's lien or counterclaim, or from any security or from any
realization (whether through attachment, foreclosure or otherwise) of assets of
any member of the Company Group, (b) are made after an Event of Default has
occurred and is continuing, or (c) are made in connection with the events or
circumstances described in Section 3.09 of the 2014 Notes Indenture, but in the
case of this clause (c), only to the extent that a prepayment of principal
outstanding under any Class of First Lien Secured Obligations is required in
connection with the same events or circumstances.
8.4 OVERPAYMENTS. When payments to Secured Parties are based upon
their respective Pro Rata Shares, the amounts received by such Secured Parties
hereunder shall be applied (for purposes of making determinations under this
Section 8 only) (a) first, to their Primary Obligations and (b) second, to
their Secondary Obligations. If any payment to any Secured Party of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Party, then (x) such Secured Party shall promptly notify the other Secured
Parties within the same Class as such Secured Party of such overpayment and (y)
the amount of such overpayment shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Parties of such Class. Each Secured Party of such Class whose
Primary Obligations or Secondary Obligations, as the case may be, have not been
paid in full shall receive an amount equal to such overpayment amount
multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured Party
and the denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of all Secured Parties entitled to such
distributions.
8.5 PAYMENT TO CLASS REPRESENTATIVES. All payments required to be
made under this Section 8 shall be made, with respect to each Class of Secured
Parties, to the Project Credit Party acting on behalf of such Class. Each such
Project Credit Party shall apply such funds in accordance with its respective
Facility Agreement.
9. REPRESENTATIONS AND WARRANTIES. Each Project Credit Party
represents and warrants to each other Project Credit Party as follows:
9.1 ORGANIZATION. It is duly organized and is validly existing
under the laws of the jurisdiction under which it was organized with full power
to execute, deliver, and perform this Agreement and consummate the transactions
contemplated hereby.
9.2 AUTHORIZATION. All actions necessary to authorize the
execution, delivery and performance of this Agreement on behalf of such party
have been duly taken, and all such actions continue in full force and effect as
of the date hereof.
9.3 BINDING AGREEMENT. It has duly executed and delivered this
Agreement and this Agreement constitutes the legal, valid, and binding
agreement of such party enforceable in accordance with its terms and subject to
(a) Bankruptcy Laws, and (b) principles of equity, which may apply regardless
of whether a proceeding is brought in law or in equity.
9.4 NO CONSENT REQUIRED. To the best of its knowledge, no consent
of any other party and no consent, license, approval, or authorization of, or
exemption by, or registration or declaration or filing with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery, or performance by such party of this Agreement or consummation by
such party of the transactions contemplated by this Agreement.
9.5 NO CONFLICT. None of the execution, delivery, and performance
of this Agreement nor the consummation of the transactions contemplated by this
Agreement will (a) violate or conflict with any provision of the organizational
or governing documents, if any, of such party; (b) to the best of its
knowledge, violate, conflict with, or result in the breach or termination of,
or otherwise give any other contracting party the right to terminate, or
constitute (or with notice or lapse of time, or both, would constitute) a
default under the terms of any contract, mortgage, lease, bond, indenture,
agreement, or other instrument to which such party is a party or to which any
of its properties are subject; (c) to the best of its knowledge, result in the
creation of any lien, charge, encumbrance, mortgage, lease, claim, security
interest, or other right or interest upon the properties or assets of such
party pursuant to the terms of any such contract, mortgage, lease, bond,
indenture, agreement, franchise, or other instrument; (d) violate any judgment,
order, injunction, decree, or award of any court, arbitrator, administrative
agency, or governmental or regulatory body of which it has knowledge against,
or binding upon such party or upon any of the securities, properties, assets,
or business of such party; or (e) to the best of its knowledge, constitute a
violation by such party of any statute, law, or regulation that is applicable
to such party.
10. MISCELLANEOUS PROVISIONS.
10.1 NOTICES; ADDRESSES. Any communications between the Project
Credit Parties hereto or notices herein to be given may be given to the
following addressees:
If to the Bank Agent: Deutsche Bank Trust Company Americas
c/o Deutsche Bank Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the 2014 Notes U.S. Bank National Association
Indenture Trustee: Corporate Trust Services
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Facsimile No.: (651)
495-8097
If to the Collateral Agent: Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
All notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if delivered
in person, (b) if sent by reputable overnight delivery service, (c) in the
event overnight delivery services are not readily available, if mailed by first
class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telex, or by telecopy with correct answer
back received. Notice so given shall be effective upon receipt by the
addressee, except that any communication or notice so transmitted by telecopy
or other direct written electronic means shall be deemed to have been validly
and effectively given on the day (if a Banking Day and, if not, on the next
following Banking Day) on which it is validly transmitted if transmitted before
4 p.m., recipient's time, and if transmitted after that time, on the next
following Banking Day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have the right to change
its address for notice hereunder to any other location by giving of no less
than twenty (20) days' notice to the other parties in the manner set forth
hereinabove.
10.2 FURTHER ASSURANCES. Each Project Credit Party (a) shall
deliver to each other Project Credit Party, to the Disbursement Agent and to
any Securities Intermediary such instruments, agreements, certificates and
documents as any such Person may reasonably request to confirm the validity and
priority of the Liens on and security interests in the Collateral granted
pursuant to the Security Documents as affected hereby, (b) shall fully
cooperate with each other, with the Disbursement Agent and with any Securities
Intermediary, and (c) shall perform all additional acts reasonably requested by
any such Person to effect the purposes of this Agreement.
10.3 WAIVER. Any waiver, permit, consent or approval of any kind or
character on the part of any of the Project Credit Parties, the Disbursement
Agent or any Securities Intermediary of any Potential Event of Default, Event
of Default or other breach or default under this Agreement, any Security
Document or any other Financing Agreement, or any waiver on the part of any of
the Project Credit Parties, the Disbursement Agent or any Securities
Intermediary, of any provision or condition of this Agreement or any other
operative document, must be in writing and shall be effective only to the
extent in such writing specifically set forth.
10.4 ENTIRE AGREEMENT. As among the Project Credit Parties, this
Agreement and any agreement, document or instrument attached hereto or referred
to herein integrate all the terms and conditions mentioned herein or incidental
hereto and supersede all oral negotiations and prior writings in respect to the
subject matter hereof, all of which negotiations and writings are deemed void
and of no force and effect. As among the Project Credit Parties, in the event
of any conflict between the terms of this Agreement and the terms of the
Disbursement Agreement, the terms of this Agreement shall control.
10.5 GOVERNING LAW. This Agreement shall be governed by the laws of
State of New York of the United States of America and shall for all purposes be
governed by and construed in accordance with the laws of such state without
regard to the conflict of law rules thereof other than Sections 5-1401 and
5-1402 of the New York General Obligations Law.
10.6 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and the parties hereto
shall enter into good faith negotiations to replace the invalid, illegal or
unenforceable provision.
10.7 HEADINGS. Section headings have been inserted in this
Agreement as a matter of convenience for reference only and it is agreed that
such headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
10.8 LIMITATIONS ON LIABILITY. No claim shall be made by any
Project Credit Party or any of its Affiliates against any other Project Credit
Party, the Disbursement Agent, any Securities Intermediary or any of their
respective Affiliates, directors, employees, attorneys or agents for any
special, indirect, consequential or punitive damages (whether or not the claim
therefor is based on contract, tort or duty imposed by law), in connection
with, arising out of or in any way related to the transactions contemplated by
this Agreement or any act or omission or event occurring in connection
therewith; and each Project Credit Party hereby waives, releases and agrees not
to ▇▇▇ upon any such claim for any such special, indirect, consequential or
punitive damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
10.9 CONSENT OF JURISDICTION. Any legal action or proceeding
arising out of this Agreement may be brought in or removed to the courts of the
State of New York, in and for the County of New York, or of the United States
of America for the Southern District of New York. By execution and delivery of
this Agreement, each Project Credit Party, accepts, for its and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts for legal proceedings arising out of or in connection with this
Agreement and irrevocably consents to the appointment of the ▇▇▇▇▇▇▇▇-▇▇▇▇
Corporation System Inc. as its agent to receive service of process in New York,
New York. Nothing herein shall affect the right to serve process in any other
manner including judicial or non-judicial foreclosure of real property
interests which are part of the Collateral. Each Project Credit Party hereby
waives any right to stay or dismiss any action or proceeding under or in
connection with any or all of the Project, this Agreement or any other
operative document brought before the foregoing courts on the basis of forum
non-conveniens.
10.10 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, this Agreement shall
terminate upon the Discharge of all but one of the Classes of Secured
Obligations (and each Secured Party whose Secured Obligations have been
Discharged shall cease to be a party hereto with respect to such Secured
Obligations upon such Discharge). Upon the Discharge of all but one of the
Classes of Secured Obligations, the Collateral Agent agrees to deliver any and
all Shared Collateral of which it has possession (subject to the terms of the
Shared Security Documents), either directly or through an agent, custodian or
other representative as requested by the Project Credit Party whose Secured
Obligations have not been discharged, and to notify each Securities
Intermediary, each counterparty to a Consent and such other Persons as such
Project Credit Party may reasonably request that such obligations have been
terminated and discharged in full.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the Project Credit Parties
listed below shall constitute a single binding agreement.
10.12 NO THIRD PARTY BENEFICIARIES. Except for the Bank Lenders,
the 2014 Noteholders, any other First Lien Secured Parties, any Second Lien
Secured Parties, the Disbursement Agent and each Securities Intermediary, the
Project Credit Parties do not intend the benefits of this Agreement to inure to
the benefit of nor shall it be enforceable by any third party (including,
without limitation, the Company or any of its Affiliates) nor shall this
Agreement be construed to make or render any Project Credit Party liable to any
third party (including, without limitation, the Company or any of its
Affiliates) for the performance or failure to perform any obligations
hereunder.
10.13 CO-COLLATERAL AGENTS; SEPARATE COLLATERAL AGENTS. (a) If at
any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which any of the Shared Collateral shall be located,
or the Collateral Agent shall be advised by counsel, satisfactory to it and to
the Bank Agent, that it is necessary or prudent in the interest of the
Collateral Agent or the Secured Parties to conform to such law, the Collateral
Agent shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more individuals
approved by the Collateral Agent and the Bank Agent, either to act as
co-collateral agent or co-collateral agents jointly with the Collateral Agent
originally named herein or any successor or successors, or to act as a separate
or sub-collateral agent or agents of the Collateral Agent and the Secured
Parties in respect of the Shared Collateral. Any co-collateral agent or
separate or sub-collateral agent appointed to act with respect to the Project
shall meet the requirements for a successor Collateral Agent set forth in
Section 2.9.
(b) Every separate or sub-collateral agent (and all references
herein to a "separate collateral agent" shall be deemed to refer also to a
"sub-collateral agent" or a "collateral sub-agent") and every co-collateral
agent, other than any collateral agent which may be appointed as successor to
any Collateral Agent, shall, to the extent permitted by applicable law, be
appointed and act and be such, subject to the following provisions and
conditions, namely:
(i) all rights, remedies, powers, duties and
obligations conferred upon, reserved to or imposed upon the Collateral
Agent in respect of the custody, control and management of monies,
papers or securities shall be exercised solely by the Collateral Agent
hereunder;
(ii) all rights, remedies, powers, duties and
obligation conferred upon, reserved or imposed upon the Collateral
Agent hereunder shall be conferred, reserved or imposed and exercised
or performed by the Collateral Agent and such separate collateral
agent or separate collateral agents or co-collateral agent or
co-collateral agents, jointly or severally, as shall be provided in
the instrument appointing such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents,
except to the extent that, under any law of any jurisdiction in which
any particular act or acts are to be performed, the Collateral Agent
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, remedies, powers, duties and obligations
shall be exercised and performed by such separate collateral agent or
separate collateral agents or co-collateral agent or co-collateral
agents;
(iii) no power given hereby to, or which it is
provided hereby may be exercised by, any such separate collateral
agent or separate collateral agents or co-collateral agent or
co-collateral agents shall be exercised hereunder by such separate
collateral agent or separate collateral agents or co-collateral agent
or co-collateral agents except (subject to applicable law) jointly
with, or with the consent or at the direction in writing of, the
Collateral Agent;
(iv) all provisions of this Agreement relating to
the Collateral Agent or to releases of Collateral shall apply to any
such separate collateral agent or separate collateral agents or
co-collateral agent or co-collateral agents;
(v) no collateral agent constituted under this
Section 10.13 shall be personally liable by reason of any act or
omission of any other separate or co-collateral agent or the
Collateral Agent hereunder; and
(vi) subject to clause (c) below, the Collateral
Agent at any time by an instrument in writing, executed by it, may (x)
accept the resignation of any such separate collateral agent or
co-collateral agent, (y) remove any such separate collateral agent or
co-collateral agent, and in that case, by an instrument in writing
executed by the Collateral Agent, and (z) appoint a successor to such
separate collateral agent or co-collateral agent.
(c) Notwithstanding any other provision of this Section
10.13, the Collateral Agent shall not appoint any separate collateral agent or
co-collateral agent at the objection of any Project Credit Party.
10.14 AMENDMENTS.
10.14.1 Upon any refinancing of any Class of Secured Obligations,
or the incurring of other Indebtedness of the Company (subject to the rights of
the existing Project Credit Parties under their respective Financing Agreements
with respect to any such refinancing or other Indebtedness), the applicable
lender shall be bound by the terms of this Agreement and such lender, or an
agent or trustee on its behalf, and the Project Credit Parties shall execute
and deliver an amendment to this Agreement to make such Person a Project Credit
Party hereunder. Any such new Project Credit Party shall also execute any other
joinder agreements, amendments or counterparts to any existing credit or
security documents to which each of the existing Project Credit Parties is a
party, as required by such documents or as reasonably requested by the
Collateral Agent.
10.14.2 Except as otherwise set forth in this Section 10.14.2,
no amendment, modification or waiver of any of the provisions of this Agreement
shall be deemed to be made unless the same shall be in a writing signed by each
Project Credit Party who is a party hereto and, if such amendment, modification
or waiver affects the rights or obligations of the Collateral Agent, a writing
signed by the Collateral Agent. Notwithstanding the foregoing, the Bank Agent
shall be entitled to amend or modify this Agreement without the consent of any
other First Lien Secured Party for the purpose of revising or altering the
subordination provisions applicable to any Second Lien Secured Obligations;
provided that no such amendment shall affect the relative rights and
obligations between or among the First Lien Secured Parties unless consented to
by all First Lien Secured Parties (or the applicable Project Credit Parties on
their behalf); and provided, further, that the Bank Agent shall only be
entitled to so amend or modify this Agreement if the outstanding Bank Secured
Obligations shall equal or exceed $100.0 million at such time and immediately
after giving effect to the incurrence of any Second Lien Secured Obligations in
connection with such amendment or modification.
10.15 ADDITIONAL SECURED PARTIES. Upon the entering into of any
Specified Hedge Agreement or other Permitted Additional Senior Secured Debt
Agreement or Permitted Additional Junior Secured Debt Agreement (subject to the
rights of the existing Secured Parties under their respective Facility
Agreements with respect to any such refinancing, replacement or restructuring
of a Class of Secured Obligations or the entering into of such Specified Hedge
Agreement, Permitted Additional Senior Secured Debt Agreement or Permitted
Additional Junior Secured Debt Agreement), a representative of the applicable
lender or hedge counterparty shall execute a joinder to this Agreement in
substantially the form attached as Exhibit A hereto (each, a "JOINDER
AGREEMENT"). Upon the execution and delivery of such a Joinder Agreement by the
representative on behalf of such new lenders or hedge counterparty (and the
execution by such representative of any other joinder agreements, amendments or
counterparts to any existing credit or security documents to which each of the
existing Project Credit Parties is a party, as required by such documents or as
reasonably requested by the Collateral Agent), (a) such new lenders shall
become, as the case may be, a "First Lien Secured Party" or a "Second Lien
Secured Party" hereunder and (b) such representative shall become a "Project
Credit Party" hereunder, with the same force and effect as if it were
originally a party to this Agreement in such capacity. The execution and
delivery of such a Joinder Agreement shall not require the consent of any other
Project Credit Party or Secured Party hereunder so long as such addition does
not otherwise give rise to an express violation of the terms of any Facility
Agreement, and the rights and obligations of each Project Credit Party and
Secured Party hereunder shall remain in full force and effect notwithstanding
the addition of any new Project Credit Party as a party to this Agreement.
10.16 TRUST INDENTURE ACT. The parties do not intend that the
provisions of this Agreement violate the requirements of the Trust Indenture
Act of 1939, as amended.
10.17 REINSTATEMENT. If the payment of any amount applied to any
First Lien Secured Obligations is later avoided, or rescinded (including by
settlement of any claim for avoidance or rescission) or otherwise set aside,
then:
(a) to the fullest extent lawful, all claims for the payment
of such amount as First Lien Secured Obligations and, to
the extent securing such claims, all such Liens under the
First Lien Security Documents will be reinstated and
entitled to the benefits hereof, and
(b) if a Discharge of First Lien Secured Obligations became
effective prior to such reinstatement, all obligations of
the Second Lien Secured Parties that were terminated as a
result of such Discharge of First Lien Secured Obligations
shall be concurrently reinstated to the extent such claims
and Liens under the First Lien Security Documents are
reinstated, beginning on such date but prospectively only
(and not retroactively), as though no First Lien Secured
Obligations or Liens under the First Lien Security
Documents had been outstanding at any time prior to such
date and will remain effective until the claims for such
amount are paid in full in cash.
10.18 ATTORNEYS' FEES. Unless paid by the Company Group, the
prevailing party in any dispute or controversy hereunder shall be entitled to
an award of its reasonable attorneys' fees.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Project Credit Parties hereto have
caused this Agreement to be executed by their respective officers or agents
thereunto duly authorized as of the day and year first above written.
2014 Notes Indenture Trustee:
----------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Bank Agent:
----------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Alexander B.V. ▇▇▇▇▇▇▇
-------------------------------
Name: Alexander B.V. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Collateral Agent:
----------------
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as collateral agent on behalf of the
Bank Agent, the 2014 Notes
Indenture Trustee and any other
Project Credit Party that from time
to time becomes a party hereto
By: /s/ Alexander B.V. ▇▇▇▇▇▇▇
--------------------------------
Name: Alexander B.V. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
as collateral agent on behalf of the
Bank Agent
By: /s/ Alexander B.V. ▇▇▇▇▇▇▇
--------------------------------
Name: Alexander B.V. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
as collateral agent on behalf of
the 2014 Notes Indenture Trustee
By: /s/ Alexander B.V. ▇▇▇▇▇▇▇
--------------------------------
Name: Alexander B.V. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President