AGENCY AND INTERCREDITOR AGREEMENT
This AGENCY AND INTERCREDITOR AGREEMENT is entered into as of this 12th
day of February, 1997 (this "Agreement") among CAMERON CAPITAL LTD., a limited
company organized under the laws of Bermuda with an office at 00 Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00, Xxxxxxx ("Xxxxxxx"), as a "Lender" under and as defined in the
"Loan Agreement" referred to below, Xxx Xxxxx ("Xxxxx"), as a Lender, the other
Lenders from time to time party hereto, and Xxxxx in its capacity as "Agent" for
Lenders under and as defined in the Loan Agreement. Capitalized terms used
herein not otherwise defined herein shall have the meanings ascribed to them in
the Loan Agreement.
Preliminary Statement:
X. Xxxxxxx, as a Lender and as predecessor Agent, and Country Star
Restaurants, Inc., a Delaware corporation ("Borrower"), have entered into
that certain Loan and Security Agreement of even date herewith (as
amended, restated, supplemented, or otherwise modified from time to time,
the "Loan Agreement").
B. Pursuant to a certain Purchase and Assignment Agreement of even
date herewith between Cameron and Xxxxx, Xxxxxxx has assigned to Xxxxx
certain rights, and Xxxxx has assumed certain obligations, under the Loan
Agreement and the other Loan Documents, and Xxxxx has become Agent under
the Loan Agreement, succeeding Cameron in such capacity.
X. Xxxxxxx, as a Lender, Xxxxx, as a Lender, and the other Lenders
which may from time to time become parties to the Loan Agreement desire to
enter into this Agreement to set forth the terms and conditions under
which Agent will act in such capacity under the Loan Agreement and the
other Loan Documents.
NOW THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Appointment. Each Lender hereby designates and appoints Xxxxx as its
Agent under the Loan Agreement and the other Loan Documents, and each Lender
hereby irrevocably authorizes Agent to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers as are set forth herein or therein, together with such other powers as
are reasonably incidental thereto. Agent agrees to act as such on the express
terms and conditions contained in this Agreement. In performing its functions
and duties under this Agreement, Agent shall act solely as agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for Borrower. Agent may perform any of
its duties under this Agreement, or under the other Loan Documents, by or
through its agents or employees.
2. Nature of Duties and Rights. Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement, the Loan
Agreement, or the other Loan Documents. Agent shall not exercise any of its or
Lenders rights and remedies arising after a Default or Event of Default under
the Loan Agreement or the other Loan Documents without the prior consent of all
Lenders, and Agent shall exercise those rights and remedies solely at the
unanimous direction of Lenders. Notwithstanding the foregoing, any Lender may,
at any time after a Default or Event of Default shall have occurred and be
continuing, terminate such Lender's commitment (if any) to make Loans and
declare all obligations owing by Borrower to such Lender under the Loan
Agreement to be immediately due and payable. Nothing in this Agreement or any of
the other Loan Documents, whether express or implied, is intended to or shall be
construed to impose upon Agent any obligations in respect of this Agreement or
any of the other Loan Documents, except as expressly set forth herein or
therein. Each Lender shall make its own independent investigation of the
financial condition and affairs of Borrower in connection with the making and
the continuance of the Loans hereunder, and shall make its own appraisal of the
creditworthiness of Borrower, and Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before the date of this Agreement or at any time or times thereafter, other than
written reports provided by Borrower to Agent pursuant to the Loan Agreement. If
Agent seeks the consent or approval of Lenders to the taking or refraining from
taking any action under the Loan Agreement or the other Loan Documents, Agent
shall send notice thereof to each Lender. Agent shall promptly notify each
Lender (a) any time that Agent becomes aware that a Default or an Event of
Default has occurred and is continuing and (b) any time that Lenders have
instructed Agent to act or refrain from acting pursuant hereto. Agent may employ
agents, co-agents and attorneys-in-fact and shall not be responsible to Lenders
or Borrower, except as to money or securities received by it or its authorized
agents, for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
3. Rights, Exculpation, Etc. Neither Agent nor any of its officers,
directors, employees or agents shall be liable to any Lender for any action
taken or omitted by it or any of them under this Agreement, the Loan Agreement,
or under any of the other Loan Documents, or in connection herewith or
therewith, except that (a) Agent shall be obligated on the terms set forth
herein for performance of its express obligations under this Agreement and the
Loan Agreement; (b) Agent shall not be entitled to exercise any of the powers
granted to it under this Agreement, the Loan Agreement or the other Loan
Documents in any way inconsistent with its express obligations to Lenders under
this Agreement; and (c) no Person shall be relieved of any liability imposed by
law for willful misconduct or any other intentional tort. Agent shall not be
liable for any apportionment or distribution of payments made by it in good
faith pursuant to the Loan Agreement and, if any such apportionment or
distribution is subsequently determined to have been made in error, the sole
recourse of any Lender to whom payment was due but not made shall be to recover
from each other Lender any payment in excess of the amount to which it is
determined to have been entitled. Agent shall not be responsible to any Lender
for any recitals, statements, representations or warranties contained in this
Agreement or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, or sufficiency of the Loan Agreement or any of
the other Loan Documents or any of the transactions contemplated
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thereby, or for the financial condition of Borrower. Agent shall not be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of the Loan Agreement or any of the other
Loan Documents or the financial condition of Borrower, or the existence or
possible existence of any Default or Event of Default. Agent may at any time
request instructions from Lenders with respect to any actions or approvals which
by the terms of this Agreement, the Loan Agreement or of any of the other Loan
Documents Agent is permitted or required to take or to grant, and if such
instructions are promptly requested, Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against Agent as a result of
Agent acting or refraining from acting under this Agreement or any of the other
Loan Documents in accordance with the instructions of Lenders.
4. Reliance. Agent shall be entitled to rely upon any written notices,
statements, certificates, orders or other documents or any telephone message
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement, the Loan Agreement, or any of the other Loan Documents and its
duties hereunder or thereunder, upon advice of counsel selected by it.
5. Agent in Individual Capacity. Xxxxx and its affiliates may make loans
to, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with Borrower and any
of their respective Subsidiaries and Affiliates as though Xxxxx were not Agent
hereunder, and without notice to or the consent of the other Lenders. Lenders
acknowledge that, pursuant to such activities, Xxxxx or its affiliates may
receive information regarding Borrower or its Subsidiaries or Affiliates
(including information that may be subject to confidentiality obligations in
favor of Borrower or any such Subsidiary or Affiliate), and acknowledge that
Agent shall be under no obligation to provide such information to them;
provided, that in the event that Xxxxx receives any such information which is
not subject to such confidentiality obligations, and while Xxxxx is Agent
hereunder, and Lenders are not otherwise provided with such information, then
Agent shall provide such information to Lenders. With respect to the Loans made
by it, Xxxxx shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not Agent.
6. Successor Agent.
(a) Agent may resign from the performance of all of its functions
and duties under this Agreement at any time solely by giving at least
sixty (60) days' prior written notice to Lenders. Such resignation shall
take effect upon the acceptance by a successor Agent of appointment
pursuant to clause (b) or (c) below.
(b) Upon any such notice of resignation, Lenders by unanimous
consent may appoint a successor Agent.
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(c) If a successor Agent shall not have been so appointed within
such sixty (60) day period because Lenders have not agreed on such
successor, the retiring Agent shall then appoint a successor Agent who
shall serve as Agent until such time, if any, as Lenders by unanimous
consent shall appoint a successor Agent as provided above.
7. Collateral Matters.
(a) The grant of Liens in favor of Agent in the Collateral are held
by Agent for the ratable benefit of all Lenders, and Agent shall act as
agent for Lenders for the purpose of, among other things, attachment and
perfection of Lenders' Liens in the Collateral.
(b) Further, each Lender hereby appoints each other Lender as agent
for the purpose of attaching and perfecting Lenders' security interest in
assets which, in accordance with Article 9 of the UCC, can be attached and
perfected only by possession. Should any Lender (other than Xxxxx for so
long as it shall also act as Agent) obtain possession of any such
Collateral, such Lender shall notify Agent thereof, and promptly upon
Agent's request therefor shall deliver such Collateral to Agent or in
accordance with Agent's instructions.
(c) Agent shall not release any Agent's Lien upon any Collateral
without the unanimous written consent of all Lenders. So long as no Event
of Default has occurred and is then continuing, upon receipt by Agent of
written consent of all Lenders to Agent's authority to release any Agent's
Liens upon particular types or items of Collateral, and upon at least five
(5) days' prior written request by Borrower, Agent shall (and is hereby
irre vocably authorized by Lenders to) execute such documents as may be
necessary to evidence the release of Agent's Liens upon such Collateral.
8. Restrictions on Actions by Lenders; Sharing of Payments and Proceeds of
Collateral.
(a) Each Lender agrees that it shall not, unless specifically
requested to do so by Agent at the direction of all Lenders, take or cause
to be taken any action, including, without limitation, the commencement of
any legal or equitable proceedings, to foreclose any Lien on, or otherwise
enforce any security interest in, any of the Collateral, the purpose of
which is, or could be, to give such Lender any preference or priority
against the other Lenders with respect to any or all of the Collateral.
Notwithstanding the date, manner or order of perfection of the Liens
granted to Agent or any Lender under the Loan Documents and
notwithstanding any provisions of the UCC, or any applicable law or
decision, or whether Agent or any Lender holds possession of all or any
part of the Collateral, Lenders shall have Liens on all Collateral in
accordance with each Lender's pro rata share of the Obligations. All
proceeds of Collateral shall be shared by Lenders in accordance with their
respective pro rata shares of the Obligations existing on the date the
event giving rise to such proceeds shall occur.
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(b) If at any time or times any Lender shall receive (i) by payment,
foreclosure, set-off or otherwise, any proceeds of Collateral or any
payments with respect to the Obligations of Borrower to such Lender
arising under, or relating to, this Agreement, the Loan Agreement or the
other Loan Documents, except for any such proceeds or payments received by
such Lender from Agent pursuant to the terms of this Agreement or the Loan
Agreement, or (ii) payments from Agent in excess of such Lender's ratable
portion of all such distributions by Agent, such Lender shall promptly
turn over the same to Agent, in kind, and with such endorsements as may be
required to negotiate the same to Agent, or in same day funds, as
applicable, for the account of all Lenders and for application to the
Obligations in accordance with the applicable provisions of this Agreement
and the Loan Agreement.
9. Payments by Agent to Lenders. All payments to be made by Agent to
Lenders under the Loan Agreement shall be made by bank wire transfer or internal
transfer of immediately available funds to the accounts listed on the signature
pages hereto or pursuant to such other wire transfer instructions as each party
may designate for itself by written notice to Agent. Concurrently with each such
payment, Agent shall identify whether such payment (or any portion thereof)
represents principal, premium or interest on the Loans or otherwise. Agent shall
maintain at its address set forth on the signature pages hereto a register of
the names and addresses of Lenders and the commitment of, and principal amount
of the Loans owing to, each Lender from time to time (the "Register"). The
entries in the Register shall constitute rebuttably presumptive evidence, absent
manifest error, of the accuracy of the information contained therein. Agent and
Lenders may treat each Person the name of which is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by any Lender at any reasonable time and from time to
time upon reasonable prior notice.
10. Amendments and Waivers. No amendment, modification or waiver of this
Agreement, the Loan Agreement, or any of the other Loan Documents shall be
effective unless evidenced by a writing agreed to and signed by all Lenders. No
amendment, modification, termination, or waiver of any provision referring to
Agent shall be effective without the written concurrence of Agent and all
Lenders. With the written concurrence of any Lender, Agent may, but shall have
no obligation to, execute amendments, modifications, waivers or consents on
behalf of such Lender. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given.
11. Binding Effect; Assignment; Disclosure. The provisions of this
Agreement shall be binding upon and inure to the benefit of the respective
representatives, successors and assigns of the parties hereto. The rights and
benefits of any Lender under this Agreement, the Loan Agreement and the other
Loan Documents shall, if such Lender so agrees, inure to any party acquiring any
interest in the Obligations or any part thereof, subject to the provisions
hereof. No assignment of any Lender's interest to any new Lender under the Loan
Agreement or the other Loan Documents shall become effective unless such new
Lender becomes a party to this Agreement.
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12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
13. Governing Law. This Agreement shall be construed in all respects in
accordance with, and governed by all of the provisions of the internal laws (as
opposed to the conflicts of law provisions) of the State of Illinois.
14. Partial Invalidity. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first above written.
Address: Xxx Xxxxx,
as Agent and as a Lender
Account Information: /s/ Xxx X. Xxxxx
Address: CAMERON CAPITAL LTD.,
as a Lender
Account Information:
By: /s/ X. Xxxxxxxx
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Title: CEO
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