intercreditoragreement.htm


     

    
      

      

    

    EXHIBIT
4.4

     

    


      INTERCREDITOR
AGREEMENT

       

      This
INTERCREDITOR AGREEMENT,
dated as of August 6, 2009 (as amended, restated, supplemented or otherwise
modified from time to time, this “Agreement”), is made by and
between U.S. BANK NATIONAL
ASSOCIATION, as collateral agent for the Subordinated Lien Creditors (as
defined below) (in such capacity, together with its successors and assigns from
time to time, the “Subordinated
Lien Creditor Representative”), and WELLS FARGO FOOTHILL, INC., a
California corporation, as arranger and agent for the Senior Lien Lenders (as
defined below) (in such capacity, together with its successors and assigns from
time to time, the “Senior Lien
Administrative Agent”), and is acknowledged by PENINSULA GAMING, LLC, a
Delaware limited liability company (“PGL”), THE OLD EVANGELINE DOWNS,
L.L.C., a Louisiana limited liability company (“OED”), DIAMOND JO, LLC, a Delaware
limited liability company (“DJL”), DIAMOND JO WORTH, LLC, a
Delaware limited liability company (“DJW” and, together with PGL,
OED and DJL, the “Senior Lien
Borrowers”), PENINSULA
GAMING CORP., a Delaware corporation (“PGC”), DIAMOND JO WORTH CORP., a
Delaware corporation, AB CASINO
ACQUISITION LLC, a Delaware limited liability company, and PENINSULA GAMING PARTNERS,
LLC, a Delaware limited liability company.

       

      RECITALS

       

      WHEREAS, the Senior Lien Borrowers, the
Lenders (as defined therein) party thereto from time to time (the “Senior Lien Lenders”) and the
Senior Lien Administrative Agent are parties to that certain Loan and Security
Agreement dated as of June 16, 2004 (as modified by that certain Consent and
Waiver, dated as of the date hereof, among the Senior Lien Administrative Agent,
the Senior Lien Lenders party thereto, OED and DJL and as may be further
amended, restated, supplemented or otherwise modified or as replaced or
refinanced from time to time, the “Senior Lien Credit
Agreement”);

       

      WHEREAS, PGL, PGC, the Subordinated
Lien Guarantors (as defined below), U.S. Bank National Association, as trustee
under the Indenture (as defined below) (in such capacity, together with its
successors and assigns from time to time, the “Trustee”), and the
Subordinated Lien Creditor Representative have entered into that certain
indenture dated as of the date hereof providing for the issuance of senior
secured notes (as amended, restated, supplemented or otherwise modified or as
replaced or refinanced from time to time, the “Indenture”);

       

      WHEREAS, pursuant to (i) the Senior
Lien Credit Agreement, the Senior Lien Borrowers have agreed to cause certain of
their respective current and future subsidiaries to agree to guaranty the Credit
Facility Indebtedness (as hereinafter defined) (the “Senior Lien Subsidiary
Guaranty”, and such guarantors of the Credit Facility Indebtedness, the
“Senior Lien
Guarantors”), and (ii) the Indenture, the Issuers have agreed to cause
certain of their respective current and future subsidiaries to agree to guaranty
the Subordinated Lien Indebtedness (as hereinafter defined) (the “Subordinated Lien Subsidiary
Guaranty”, and such guarantors of the Subordinated Lien Indebtedness, the
“Subordinated Lien
Guarantors”);

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

                 WHEREAS,
the obligations of the Senior Lien Borrowers under the Senior Lien Credit
Agreement and the obligations of the Senior Lien Guarantors under the Senior
Lien Subsidiary Guaranty are secured by liens on substantially all the assets of
the Senior Lien Borrowers and the Senior Lien Guarantors, respectively, pursuant
to the terms of the Senior Lien Security Documents (as defined
below);

       

      WHEREAS, the obligations of the Issuers
under the Indenture and the obligations of the Subordinated Lien Guarantors
under the Subordinated Lien Subsidiary Guaranty are secured by liens on certain
assets of the Issuers and the Subordinated Lien Guarantors, respectively,
pursuant to the terms of the Indenture Security Documents (as defined
below);

       

      WHEREAS, the Senior Lien Documents and
the Indenture Documents provide, among other things, that the parties thereto
shall set forth in this Agreement their respective rights and remedies with
respect to the Collateral; and

       

      WHEREAS, in order to induce the Senior
Lien Creditors (as defined below) to consent to the Grantors (as defined below)
incurring the Subordinated Lien Indebtedness (as defined below) and to induce
the Senior Lien Creditors to continue to extend credit and other financial
accommodations and lend monies to or for the benefit of the Grantors, the
Subordinated Lien Creditor Representative on behalf of the Subordinated Lien
Creditors has agreed to the lien subordination provisions set forth in this
Agreement.

       

      NOW
THEREFORE, in consideration of the foregoing, the mutual covenants and
obligations herein set forth and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:

       

      ARTICLE
I

       

      DEFINITIONS

       

      Section
1.1 Definitions.  As
used in this Agreement, the following terms shall have the meanings set forth
below:

       

      “Agreement” shall have the
meaning assigned to that term in the preamble hereto.

       

      “Bankruptcy Code” shall mean
the United States Bankruptcy Code (11 U.S.C. Section 101 et seq.), as the same
may now or hereafter be amended, and including any successor
statute.

       

      “Bankruptcy Law” shall mean the
Bankruptcy Code and any similar federal, state or foreign law for the relief of
debtors.

       

      “Business Day” shall mean any
day that is not a Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to remain closed.

       

      
        
          
          

        

        
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      “Collateral” shall mean all of
the assets and property of any Grantor, whether real, personal or mixed,
constituting both Senior Lien Collateral and Subordinated Lien
Collateral

       

      “Credit Facility Indebtedness”
shall mean all present and future obligations (including principal, interest,
fees and reimbursement obligations under letters of credit), contingent or
otherwise, of the Grantors to the Senior Lien Creditors arising under or
pursuant to the Senior Lien Documents, including, in each case, interest, fees,
and expenses accruing after the initiation of any Insolvency Proceeding
(irrespective of whether allowed as a claim in such proceeding), and including
the secured claims of any Senior Lien Creditor in respect of the Collateral in
any Insolvency Proceeding.

       

      “DJL” shall have the meaning
assigned to that term in the preamble hereto.

       

      “DJW” shall have the meaning
assigned to that term in the preamble hereto.

       

      “Enforcement Action” shall
mean, with respect to any Party, the exercise of any right or remedy with
respect to any Collateral (including any right of set-off) or the taking of any
Foreclosure Action or other action to enforce, collect or realize upon any
Collateral, or the commencement of any action, whether judicial or otherwise,
for the enforcement of such Party’s rights and remedies as a secured creditor
with respect to the Collateral, or the commencement of any receivership
proceedings or any other sale of, collection on, or disposition of, any
Collateral, including the exercise of any right, remedy or action
to:  (a) exercise any collection rights in respect of any Collateral
or notify any account debtors to make payment directly to such Party or its
agents or other Persons acting on its behalf or retain any proceeds of accounts
and other obligations receivable paid by any account debtor; (b) take or accept
any transfer of title in lieu of foreclosure upon any Collateral; (c) enforce
any claim to the proceeds of insurance upon any Collateral; (d) 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 such Party
in respect of any Collateral; or (e) otherwise enforce any remedy available to
such Party upon default for the enforcement of any Lien upon the
Collateral.

       

      “Enforcement Event” shall mean
the occurrence of an “Event of Default” under, and as defined in, the
Indenture.

       

      “Enforcement Event Notice”
shall have the meaning assigned thereto in Section 3.2.

       

      “Entitled Parties” shall have
the meaning assigned thereto in Section 4.1(a).

       

      “Event of Default” shall mean
the occurrence of an “Event of Default” under, and as defined in, the Senior
Lien Credit Agreement.

       

       “Financing Documents” shall
mean, collectively, the Indenture Documents and the Senior Lien
Documents.

       

      
        
          
          

        

        
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      “Foreclosure Action” shall mean
any action to foreclose upon or enforce a Lien against any of the Collateral,
including (a) commencing judicial or non-judicial foreclosure proceedings, (b)
exercising any rights afforded to secured creditors in a case under the
Bankruptcy Law with respect to the Collateral, or (c) taking any action under
the Bankruptcy Law that directly relates to or directly affects any such
Collateral, other than any such action that relates to or affects all or
substantially all of the property of the bankruptcy estate.

       

      “Fully Paid” shall mean (a)
with respect to the Indenture Documents, the payment in cash or cash equivalents
in full of all obligations (other than contingent, unliquidated indemnity
obligations that survive payment in full) under the Indenture Documents, and (b)
with respect to the Senior Lien Documents, (i) the payment in cash or cash
equivalents in full of all obligations (other than contingent, unliquidated
indemnity obligations that survive payment in full) under such Senior Lien
Documents (it being agreed and understood that the principal amount of such
obligations shall at no time exceed the Maximum Credit Facility Amount, plus
related interest, fees, costs, expenses and reimbursement and indemnification
obligations), and (ii) the termination of all commitments or other obligations
of the Senior Lien Creditors to extend credit thereunder to any
Grantor.

       

      “Grantor Acknowledgment” shall
mean an acknowledgment substantially in the form of Exhibit A
hereto.

       

      “Grantors” shall mean each
Senior Lien Borrower, each Issuer, each Senior Lien Guarantor, each Subordinated
Lien Guarantor and each other Person that has or may from time to time hereafter
execute and deliver a Senior Lien Security Document or a Indenture Security
Document as a “grantor”, “pledgor” or “debtor” (or the equivalent thereof)
thereunder.

       

       “Indebtedness” shall mean and
include all obligations that constitute “Indebtedness” within the meaning of the
Senior Lien Credit Agreement or the Indenture, as applicable.

       

      “Indenture” shall have the
meaning assigned to that term in the recitals hereto.

       

      “Indenture Documents” shall
mean the Indenture, the Notes, the Indenture Security Documents and the
Registration Rights Agreement (as defined in the Indenture), and such other
agreements, documents, instruments and certificates executed and delivered (or
issued) by the Grantors pursuant to the Indenture or the Indenture Security
Documents, as any or all of the same may be amended, restated, supplemented or
otherwise modified from time to time.

       

      “Indenture Security Documents”
shall mean the “Security Documents” as defined in the Indenture and any other
agreement, document or instrument pursuant to which a Lien is granted securing
any Subordinated Lien Indebtedness or under which rights or remedies with
respect to such Liens are governed.

       

      “Insolvency Proceeding” shall
mean (a) any voluntary or involuntary case or proceeding under the Bankruptcy
Code with respect to any Grantor or any of its subsidiaries, (b) any other
voluntary or involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding with respect to any Grantor or any of its subsidiaries or
with respect to a material portion of their respective assets, (c) any
liquidation, dissolution, reorganization or winding up of any Grantor or any of
its subsidiaries, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (d) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of any Grantor or any of its
subsidiaries.

       

      
        
          
          

        

        
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      “Issuers” shall mean PGL and
PGC.

       

      “Lien” shall mean any lien
(including, without limitation judgment liens and liens arising by operation of
law), mortgage, pledge, assignment, security interest, charge or encumbrance of
any kind (including any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, and any lease in the nature thereof)
and any option, call, trust, UCC financing statement or other preferential
arrangement having the practical effect of any of the foregoing.

       

      “Lien Priority” shall mean,
with respect to any Lien upon any Collateral, the order of priority of such Lien
as specified in Sections 2.1 and 2.2.

       

      “Maximum Credit Facility
Amount” shall mean $115,000,000, which amount may be increased or
decreased as provided in Section 4.7(b)(i) of the Indenture (as in effect on the
date hereof), in aggregate principal amount of Indebtedness outstanding under
the Senior Lien Documents, plus all related interest, fees, expenses and
indemnification obligations or such greater amount or amounts as the Trustee may
consent to in its discretion.

       

       “Notes” shall mean the 8 3/8%
senior secured notes due 2015 in an aggregate principal amount equal to
$240,000,000 issued pursuant to the Indenture, and any other senior secured
notes issued from time to time under the Indenture.

       

      “OED” shall have the meaning
assigned to that term in the preamble hereto

       

      “Party” shall mean each of (a)
the Subordinated Lien Creditor Representative, on behalf of itself and the other
Subordinated Lien Creditors and (b) the Senior Lien Administrative Agent, on
behalf of itself and the other Senior Lien Creditors.

       

      “Person” shall mean any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, governmental authority or other
entity.

       

      “PGC” shall have the meaning
assigned to that term in the preamble hereto.

       

      “PGL” shall have the meaning
assigned to that term in the preamble hereto.

       

      “Pledged Collateral” shall have
the meaning assigned to that term in Section 4.2(a).

       

      “Secured Liabilities” shall
mean, collectively, the Credit Facility Indebtedness (up to the Maximum Credit
Facility Amount) and the Subordinated Lien Indebtedness.

       

      “Senior Lien Administrative
Agent” shall have the meaning assigned to that term in the preamble
hereto.

       

      
        
          
          

        

        
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      “Senior Lien Borrowers” shall
have the meaning assigned to that term in the preamble hereto.

       

      “Senior Lien Collateral” shall
mean all of the assets and property of any Grantor, whether real, personal or
mixed, with respect to which a Lien is granted as security for any Credit
Facility Indebtedness.

       

      “Senior Lien Credit Agreement”
shall have the meaning assigned to that term in the recitals
hereto.

       

       “Senior Lien Creditors” shall
mean, at any relevant time, the Senior Lien Administrative Agent and the holders
of the Credit Facility Indebtedness at that time, including, without limitation,
the Senior Lien Lenders.

       

      “Senior Lien Documents” shall
mean the Senior Lien Credit Agreement and the “Loan Documents” as defined in the
Senior Lien Credit Agreement and such other agreements, documents, instruments
and certificates executed and delivered (or issued) by the Grantors pursuant to
the Senior Lien Credit Agreement, as any or all of the same may be amended,
restated, supplemented or otherwise modified from time to time.

       

      “Senior Lien Guarantors” shall
have the meaning assigned to that term in the recitals hereto.

       

      “Senior Lien Lenders” shall
have the meaning assigned to that term in the recitals hereto.

       

      “Senior Lien Security
Documents” shall mean each agreement, document or instrument pursuant to
which a Lien is granted securing any Credit Facility Indebtedness or under which
rights or remedies with respect to such Liens are governed.

       

      “Senior Lien Subsidiary
Guaranty” shall have the meaning assigned to that term in the recitals
hereto.

       

      “Subordinated Lien Collateral”
shall mean all of the assets and property of any Grantor, whether real, personal
or mixed, with respect to which a Lien is granted as security for any
Subordinated Lien Indebtedness.

       

      “Subordinated Lien Creditor
Representative” shall have the meaning assigned to that term in the
preamble hereto.

       

      “Subordinated Lien Creditors”
shall mean the Subordinated Lien Creditor Representative, the Trustee and, at
any relevant time, the holders of Subordinated Lien Indebtedness at that time,
including, without limitation, the holders of Notes.

       

      “Subordinated Lien Guarantors”
shall have the meaning assigned to that term in the recitals hereto

       

      
        
          
          

        

        
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      “Subordinated Lien
Indebtedness” shall mean the “Note Obligations” as defined in the
Indenture and all other present and future obligations, contingent or otherwise,
of the Grantors to the Subordinated Lien Creditors arising under or pursuant to
the Indenture Documents, including, in each case, interest, fees and expenses
accruing after the initiation of any Insolvency Proceeding (irrespective of
whether allowed as a claim in such proceeding), and including the secured claims
of any Subordinated Lien Creditor in respect of the Collateral in any Insolvency
Proceeding.

       

      “Subordinated Lien Subsidiary
Guaranty” shall have the meaning assigned to that term in the recitals
hereto.

       

      “Trustee” shall have the
meaning assigned to that term in the recitals hereto.

       

      “UCC” shall mean the Uniform
Commercial Code (or any similar or equivalent legislation) as in effect in any
applicable jurisdiction

       

      Section
1.2 Terms
Generally.

       

      All
definitions herein (whether set forth herein directly or by reference to
definitions in other documents) shall be equally applicable to both the singular
and the plural forms of the terms defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include,” “includes” and “including” shall
be deemed to be followed by the phrase “without limitation.”  The word
“will” shall be construed to have the same meaning and effect as the word
“shall.”  Unless the context requires otherwise:

       

      (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, restated, supplemented, modified, renewed or
extended;

       

      (b)           any
reference herein to any Person shall be construed to include such Person’s
permitted successors and assigns;

       

      (c)           the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof;

       

      (d)           all
references herein to Sections shall be construed to refer to Sections of this
Agreement; and

       

      (e)           the
words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights.

       

      
        
          
          

        

        
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      ARTICLE
II

       

      LIEN
PRIORITY

       

      Section
2.1 Agreement to Subordinate
Liens.  The Subordinated Lien Creditor Representative hereby
agrees that all Liens of the Subordinated Lien Creditor Representative for the
benefit of itself and the Subordinated Lien Creditors in and to the Collateral
are and shall be junior to and subordinate in priority to the Liens of any or
all of the Senior Lien Creditors in and to the Collateral securing the Credit
Facility Indebtedness (up to the Maximum Credit Facility Amount); provided that,
the rights of a Party under this Agreement shall be void and of no further force
and effect if, and only to the extent, that the Liens of such Party in and to
the Collateral are avoided, disallowed, set aside or otherwise invalidated in
any action or proceeding by a court, tribunal or administrative agency of
competent jurisdiction and such avoidance, disallowance, set aside or other
invalidation is permanent and is not later reversed.  The
subordination of the Liens of the Subordinated Lien Creditor Representative for
the benefit of itself and the other Subordinated Lien Creditors in and to the
Collateral in favor of the Senior Lien Creditors provided for herein shall not
be deemed to (a) subordinate the Liens of the Subordinated Lien Creditor
Representative for the benefit of itself and the other Subordinated Lien
Creditors to the Liens of any other Person, or (b) subordinate the Subordinated
Lien Indebtedness to any other Indebtedness of the Issuers or any other Grantor,
including the Credit Facility Indebtedness.

       

      Section
2.2 Non-Contest; Excluded
Assets.  Each Party agrees that it will not attack or contest
the validity, perfection, priority or enforceability of the Liens of the other
Party or finance or urge any other Person to do so; provided that, any Party may
enforce its rights and privileges hereunder without being deemed to have
violated this provision.  Any provision contained in this Agreement to
the contrary notwithstanding, the terms and conditions of this Agreement shall
not apply, as between the Senior Lien Administrative Agent, on the one hand, and
the Subordinated Lien Creditor Representative, on the other hand, to any
property or assets (including property or assets that do not constitute
Collateral) as to which the Senior Lien Administrative Agent has a Lien and as
to which the Subordinated Lien Creditor Representative does not have a Lien, or
as to which the Subordinated Lien Creditor Representative has a Lien and the
Senior Lien Administrative Agent does not have a Lien.

       

      Section
2.3 Exercise of
Rights.

       

      (a) The
Subordinated Lien Creditor Representative may exercise, and nothing herein shall
constitute a waiver of, any right or remedy it may have at law or equity to
receive notice of, or to commence or join with any creditor in commencing any
Insolvency Proceeding; provided that the exercise of
any such right or remedy by the Subordinated Lien Creditor Representative shall
be (i) subject to the Lien Priority and application of proceeds of Collateral as
provided in Section 3.4 and (ii) subject to the provisions of Sections 3.1 and
3.2.

       

      (b) Notwithstanding
any other provision hereof, the Subordinated Lien Creditor Representative may
make such demands or file such claims as may be necessary to prevent the waiver
or bar of such claims under applicable statutes of limitations or other
statutes, court orders or rules of procedure.

       

      
        
          
          

        

        
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      Section
2.4 Priority of
Liens.  (a)  Irrespective of any priority otherwise
available to the Subordinated Lien Creditor Representative by law or agreement
or irrespective of the order of recording of mortgages, financing statements,
security agreements or other instruments, and irrespective of the descriptions
of Collateral contained in the Financing Documents, including any financing
statements, each of the Subordinated Lien Creditor Representative and the Senior
Lien Administrative Agent hereby agree among themselves that their respective
Liens upon the Collateral shall be governed by the Lien Priority, which shall be
controlling in the event of any conflict between this Agreement and any of the
Financing Documents.

       

      (b) Each
Party agrees that this Agreement and the Lien Priority shall remain in full
force and effect without regard to, and shall not be released, suspended,
discharged, terminated, modified or otherwise affected by any circumstance or
occurrence whatsoever (other than in accordance with the terms hereof),
including any of the following (whether or not such Party consents thereto or
has notice thereof):  (i) any change in or waiver of the time, place
or manner of payment, or any other term, of any of the Secured Liabilities or
Financing Documents, any waiver of or any renewal, extension, increase,
refinancing, amendment or modification of or addition, consent or supplement to
or deletion from, or any other action or inaction under or in respect of, any of
the Secured Liabilities or Financing Documents or any other document, instrument
or agreement referred to therein or any assignment or transfer of any of the
Secured Liabilities or Financing Documents; (ii) any furnishing of any
additional collateral for any of the Secured Liabilities or any sale, exchange,
release or surrender of, or realization on, any collateral for any of the
Secured Liabilities; (iii) any settlement, release or compromise of any of the
Secured Liabilities or Financing Documents, any collateral therefor, or any
liability of any other party (including any other Party) with respect to any of
the Secured Liabilities or Financing Documents, or any subordination of payment
of any Secured Liabilities to the payment of any other Indebtedness, liability
or obligation of any of the Grantors or any of their respective subsidiaries;
(iv) any bankruptcy, insolvency, reorganization, composition, adjustment,
merger, consolidation, dissolution, liquidation or other like proceeding or
occurrence relating to any of the Grantors or any of their respective
subsidiaries, or any other change in the ownership, control, composition or
nature of any of the Grantors or any of their respective subsidiaries; (v) any
application of sums paid by any of the Grantors or any of their respective
subsidiaries with respect to any of the Secured Liabilities, except to the
extent actually applied against such Secured Liabilities, regardless of what
other liabilities of the Grantors or any of their respective subsidiaries remain
unpaid; or (vi) the failure of any Party to assert any claim or demand or to
enforce any right or remedy against the Grantors or any of their respective
subsidiaries or any other Person (including any Senior Lien Creditor or
Subordinated Lien Creditor with respect to the applicable Secured Liabilities)
under the provisions of any of the Financing Documents or
otherwise.

       

      Section
2.5 Insolvency.  (a)  The
provisions of this Agreement will be applicable both before and after the filing
or commencement of any Insolvency Proceeding and all converted or succeeding
cases in respect thereof, and all references herein to any Grantor shall be
deemed to apply to the trustee for such Grantor and such Grantor as a
debtor-in-possession.  The relative rights of the Senior Lien
Creditors and the Subordinated Lien Creditors in or to any distributions from or
in respect of any Collateral or proceeds of Collateral shall continue after the
filing of such Insolvency Proceeding on the same basis as prior to the date of
such filing, subject to any court order approving the financing of, or use of
cash collateral by, any Grantor as debtor-in-possession.  If, in any
Insolvency Proceeding and at any time any Credit Facility Indebtedness exists
that has not been Fully Paid, all of the Senior Lien Creditors (or such number
of the Senior Lien Creditors as may have the power to bind all of
them):

       

      
        
          
          

        

        
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      (i) consent
to any order for use of cash collateral or agree to the extension of any such
Credit Facility Indebtedness (including any debtor-in-possession financing) to
any Grantor;

       

      (ii) consent
to any order granting any priming lien, replacement lien, cash payment or other
relief on account of such Credit Facility Indebtedness as adequate protection
(or its equivalent) for the interests of the Senior Lien Creditors in the
property subject to such Lien of the Senior Lien Administrative
Agent;

       

      (iii) consent
to any order approving post-petition financing pursuant to Section 364 of the
Bankruptcy Code (including any “roll-up” of such Credit Facility Indebtedness);
or

       

      (iv) consent
to any order relating to a sale of assets of any Grantor that provides, to the
extent the sale is to be free and clear of Liens, that the Liens of the Senior
Lien Administrative Agent and the Lien of the Subordinated Lien Creditor
Representative shall attach to the proceeds of the sale,

       

      then the
Subordinated Lien Creditors will not oppose or otherwise contest the entry of
such order.

       

      (b) So long
as there is any Credit Facility Indebtedness that has not been Fully Paid,
neither the Subordinated Lien Creditor Representative nor any other Subordinated
Lien Creditor will:

       

      (i) request
judicial relief, in an Insolvency Proceeding or in any other court, that would
hinder, delay, limit or prohibit the lawful exercise or enforcement of any right
or remedy otherwise available to the Senior Lien Administrative Agent in respect
of the Collateral or that would limit, invalidate, avoid or set aside any Lien
of the Senior Lien Administrative Agent or any Senior Lien Document or
subordinate the Lien of the Senior Lien Administrative Agent to the Lien of the
Subordinated Lien Creditor Representative or grant the Lien of the Senior Lien
Administrative Agent equal ranking to the Lien of the Subordinated Lien Creditor
Representative;

       

      (ii) oppose or
otherwise contest any motion for relief from the automatic stay or from any
injunction against foreclosure or enforcement of the Lien of the Senior Lien
Administrative Agent made by the Senior Lien Administrative Agent in any
Insolvency Proceeding;

       

      (iii) oppose or
otherwise contest any lawful exercise by the Senior Lien Administrative Agent of
the right to credit bid at any sale in foreclosure of the Lien of the Senior
Lien Administrative Agent;

       

      
        
          
          

        

        
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      (iv) oppose or
otherwise contest any other request for judicial relief made in any court by the
Senior Lien Administrative Agent relating to the lawful enforcement of the Lien
of the Senior Lien Administrative Agent;

       

      (v) request
relief from the automatic stay in any Insolvency Proceeding unless any Senior
Lien Creditor requests such relief; or

       

      (vi) challenge
the enforceability, perfection or the validity of the Credit Facility
Indebtedness or the Lien of the Senior Lien Administrative Agent.

       

      (c) The
Subordinated Lien Creditor Representative will not file or prosecute in any
Insolvency Proceeding any motion for adequate protection or for relief from the
automatic stay (in each case, or any comparable request for relief) based upon
its interests in the Collateral, except that the Subordinated Lien Creditor
Representative may:

       

      (i) freely
seek and obtain relief granting a replacement lien, additional lien,
superpriority, administrative claim or other adequate protection co-extensive in
all respects with, but subordinated in accordance with the Lien Priority in all
respects to, all Liens granted in such Insolvency Proceeding to the Senior Lien
Administrative Agent in connection with Credit Facility
Indebtedness;

       

      (ii) assert
rights consistent with this Agreement in connection with the confirmation of any
plan of reorganization or similar dispositive restructuring plan;
and

       

      (iii) freely
seek and obtain any relief upon a motion for adequate protection or for relief
from the automatic stay (in each case, or any comparable relief), without any
condition or restriction whatsoever, at any time when all Credit Facility
Indebtedness has been Fully Paid.

       

      (d) If, in
any Insolvency Proceeding, debt obligations of the reorganized debtor secured by
Liens upon any property of the reorganized debtor are distributed, both on
account of Credit Facility Indebtedness and on account of the Subordinated Lien
Indebtedness, then, to the extent the debt obligations distributed on account of
the Credit Facility Indebtedness and on account of the Subordinated Lien
Indebtedness 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.

       

      (e) Subject
to Section 3.4(a)(ii), the Subordinated Lien Creditor Representative will not
assert or enforce, at any time when any Credit Facility Indebtedness exists that
has not been Fully Paid, any claim under Section 506(c) of the Bankruptcy Code
senior to or on a parity with the Lien of the Senior Lien Administrative Agent
for costs or expenses of preserving or disposing of any Collateral.

       

      
        
          
          

        

        
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      Section
2.6 Insurance and Condemnation
Proceeds.  At any time when any Credit Facility Indebtedness
exists that has not been Fully Paid, the Senior Lien Administrative Agent will
have the sole right to adjust settlement of all insurance claims and
condemnation awards in the event of any covered loss, theft, destruction or
condemnation of any Collateral and all claims under insurance constituting
Collateral, subject to the terms of the Senior Lien Documents.

       

      ARTICLE
III

       

      ACTIONS
OF THE PARTIES

       

      Section
3.1 Limitation on Certain
Actions.  Subject to Section 3.2, until the first date on which
the Maximum Credit Facility Amount is Fully Paid, no Subordinated Lien Creditor
will, without the prior written consent of the Senior Lien Administrative Agent,
take any Enforcement Action.

       

      Section
3.2 Standstill
Period.  If an Enforcement Event has occurred and is
continuing, the Subordinated Lien Creditor Representative, on behalf of the
Subordinated Lien Creditors, may give the Senior Lien Administrative Agent
written notice thereof (an “Enforcement Event Notice”),
which notice shall constitute notice to each Senior Lien Creditor.  If
(a) such Enforcement Event is continuing for more than 180 consecutive days
after the delivery of such Enforcement Event Notice (the “Expiry Date”), (b) the Senior
Lien Administrative Agent has not, on or before the Expiry Date, commenced (and
notified the Subordinated Lien Creditor Representative that the Senior Lien
Administrative Agent has commenced) one or more Enforcement Actions, and (c) the
Grantor against which the Subordinated Lien Creditor Representative’s proposed
Enforcement Action is to be taken is not the subject of an Insolvency
Proceeding, then the Subordinated Lien Creditor Representative may, subject to
the Lien Priority and the application of all proceeds of the Collateral in
accordance with Section 3.4, take one or more Enforcement Actions.  If
(i) the Senior Lien Administrative Agent has commenced any Enforcement Action on
or prior to the Expiry Date and, at any time after the Expiry Date, is no longer
pursuing one or more Enforcement Actions, (ii) no Insolvency Proceeding is
pending against the Grantors against which the Subordinated Lien Creditor
Representative’s proposed Enforcement Action is to be taken, and (iii) the
Enforcement Event that was the subject of, or existing on the date of, the
Enforcement Event Notice is then continuing, then the Subordinated Lien Creditor
Representative may, subject to the Lien Priority and the prior application of
all proceeds of the Collateral in accordance with Section 3.4, take one or more
Enforcement Actions.  Except as expressly provided for in this
Agreement, nothing in this Agreement shall prevent the Parties from exercising
any other remedy, or taking any other action, under any of the applicable
Financing Documents.

       

      Section
3.3 Foreclosure.  Any
Party taking a permitted Enforcement Action may enforce its Financing Documents
independently as to any of the applicable Grantors and independently of any
other remedy or security such Party at any time may have or hold in connection
with its Secured Liabilities, and, except as provided herein, it shall not be
necessary for such Party to marshal assets in favor of any other Party or any
other Person or to proceed upon or against or exhaust any other security or
remedy before proceeding to enforce the Financing Documents.  Each of
the Subordinated Lien Creditor Representative (for so long as the Maximum Credit
Facility Amount is not Fully Paid) and the Senior Lien Administrative Agent (for
so long as the Subordinated Lien Creditors are owed any Subordinated Lien
Indebtedness), expressly waives any right to require the other Party to marshal
assets in favor of any Party or to proceed against any Collateral provided by
any Grantor, or any other property, assets, or collateral provided by any
Grantor or any other Person, and agrees that the Party taking such permitted
Enforcement Action may proceed against any Grantor, any Collateral or other
property, assets, or other collateral provided by any of them or by any other
Person, in such order as it shall determine in its sole and absolute
discretion.  The foregoing notwithstanding:  (a) with
respect to the sale or other disposition of any Collateral governed by Article 9
of the UCC, the Party conducting such sale or other disposition agrees in favor
of the other Party that every aspect of such sale 

       

      
        
          
          

        

        
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or other
disposition, including the method, manner, time, place and terms, must be
commercially reasonable; (b) with respect to the sale or other disposition of
any Collateral consisting of real property, the Party conducting such sale or
other disposition agrees in favor of the other Parties that such sale or other
disposition shall be conducted according to the normal practices of commercial
real property secured lenders generally; (c) with respect to the sale or other
disposition of any Collateral by any Party, such Party agrees to provide the
other Party with such written notice as it is required by applicable law
(including, if applicable, the UCC) to provide to the Grantors (without regard
to whether the Grantors have waived their entitlement to receive such notice);
and (d) the Senior Lien Administrative Agent, on behalf of itself and each other
Senior Lien Creditor, agrees that, from and after such time as the Maximum
Credit Facility Amount has been Fully Paid, the Senior Lien Administrative Agent
thereupon promptly shall cease all Enforcement Actions.

      

       

      Section
3.4 Distribution.  Each
Party agrees that, upon any distribution as a result of any Enforcement Action,
or the receipt of any other payment or distribution with respect to the
Collateral, the proceeds thereof shall be distributed in the order of, and in
accordance with, the following priorities:

       

      (a) FIRST:

       

      (i) if the
Enforcement Action is taken by a Senior Lien Creditor, to the payment of all
reasonable costs and expenses, commissions and taxes of such Senior Lien
Creditor incurred in connection with taking such Enforcement Action or other
realization, including all reasonable expenses (including attorneys fees and
expenses), liabilities and advances made or incurred by or on behalf of such
Senior Lien Creditor in connection therewith;

       

      (ii) if the
Enforcement Action is taken and entitled to be taken by the Subordinated Lien
Creditor Representative or the Trustee, to the payment of all reasonable costs
and expenses, commissions and taxes of the Subordinated Lien Creditor
Representative or the Trustee incurred in connection with taking such
Enforcement Action or other realization, including all reasonable expenses
(including attorneys fees and expenses), liabilities and advances made or
incurred by or on behalf of the Subordinated Lien Creditor Representative or the
Trustee, as applicable, in connection therewith;

       

      
        
          
          

        

        
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      (b) SECOND,
to the Senior Lien Administrative Agent, for the benefit of the Senior Lien
Creditors, until the first date on which the Maximum Credit Facility Amount is
Fully Paid, to be applied in accordance with the Senior Lien Loan
Documents;

       

      (c) THIRD, to
the Subordinated Lien Creditor Representative, until all Subordinated Lien
Indebtedness is Fully Paid, to be applied in accordance with the Indenture
Documents; and

       

      (d) FOURTH,
to the extent of any excess of such proceeds, to or at the direction of the
applicable Grantor, or as a court of competent jurisdiction shall
direct.

       

      Section
3.5 Notice of Certain Events;
Information.  (a)  Each Party agrees that it will
notify the other Party in writing, (i) if it receives actual notice of the
occurrence of an Event of Default or an Enforcement Event, not later than 30
days after the date of any such occurrence, and (ii) at least 15 days prior to
exercising any remedies with respect to any portion of the
Collateral.  Notwithstanding the foregoing, the Senior Lien
Administrative Agent shall not be obligated to provide such prior written notice
if exigent circumstances require that the Senior Lien Administrative Agent act
immediately in order to preserve, protect or obtain possession or control over
the Collateral or any portion thereof; provided that, if such exigent
circumstances require the Senior Lien Administrative Agent to so act
immediately, the Senior Lien Administrative Agent agrees to provide the
Subordinated Lien Creditor Representative with written notice as soon as
practicable following the Senior Lien Administrative Agent first exercising any
of its secured creditor remedies with respect to the Collateral, and no Party
shall incur any liability to the other under this Section 3.5 as a result of the
failure of such Party to provide any such notice so long as the failure to so
provide such notice was not the result of willful misconduct, bad faith or gross
negligence.

       

      (b) The
Senior Lien Administrative Agent, on the one hand, and the Subordinated Lien
Creditor Representative, on the other hand, shall each be responsible for
keeping themselves informed of the financial condition of the Grantors and their
respective subsidiaries and all other circumstances bearing upon the risk of
nonpayment of the Secured Liabilities.  Neither the Senior Lien
Administrative Agent, on the one hand, nor the Subordinated Lien Creditor
Representative, on the other hand, shall have any duty to advise the other Party
of information regarding such condition or circumstances or, except as otherwise
expressly provided herein, as to any other matter.  If the Senior Lien
Administrative Agent, on the one hand, or the Subordinated Lien Creditor
Representative, on the other hand, in their respective discretion, undertakes at
any time or from time to time to provide any such information to any Party, such
first Party shall be under no obligation to provide any similar information on
any subsequent occasion, to provide any additional information, to undertake any
investigation, or to disclose any information which, pursuant to accepted or
reasonable commercial finance practice, it wishes to maintain
confidential.

       

      
        
          
          

        

        
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      ARTICLE
IV

       

      ENFORCEMENT
OF PRIORITIES

       

      Section
4.1 In Furtherance of Lien
Priorities.  Each Party agrees as follows:

       

      (a) All
payments or distributions of, or with respect to, the Collateral that are
received by any Senior Lien Creditor or Subordinated Lien Creditor contrary to
the provisions of this Agreement (including payments or distributions in
connection with any Insolvency Proceeding) shall be segregated from other funds
and property held by such Senior Lien Creditor or Subordinated Lien Creditor, as
applicable, and shall be held in trust for the party or parties entitled thereto
in accordance with the provisions of Section 3.4 (the “Entitled Parties”) and such
Senior Lien Creditor or Subordinated Lien Creditor, as applicable, shall
forthwith pay over such remaining proceeds to the Entitled Parties in the same
form as so received (with any necessary endorsement) to be applied (in the case
of cash) or held as Collateral (in the case of non-cash property or securities)
in accordance with the provisions hereof and the provisions of the applicable
Financing Documents.

       

      (b) From and
after the first date on which the Maximum Credit Facility Amount is Fully Paid,
the Senior Lien Administrative Agent will promptly execute and deliver all
further instruments and documents, and take all further acts that may be
necessary, or that the Subordinated Lien Creditor Representative may reasonably
request, to permit the Subordinated Lien Creditor Representative to evidence the
termination of the Lien Priority hereunder, or in furtherance thereof; provided that the Senior Lien
Administrative Agent shall not be required to pay over any payment or
distribution, execute any instruments or documents, or take any other action
referred to in this clause (b) to the extent that such action would contravene
any applicable law, order or other legal requirement, and, in the event of a
controversy or dispute, the Senior Lien Administrative Agent may interplead any
payment or distribution in any court of competent jurisdiction.

       

      (c) Each
Party is hereby authorized to demand specific performance of this Agreement,
whether or not the Grantors shall have complied with any of the provisions
hereof applicable to it, at any time when the other Party shall have failed to
comply with the provisions of this Agreement applicable to it; provided that the remedy of
specific performance shall not be available, and the asserting Party shall be
free to assert any and all legal defenses it may possess, if such remedy would
result in, or otherwise constitute, a violation of the Employee Retirement
Income Security Act of 1974, as amended.  Each Party hereby
irrevocably waives any defense based on the adequacy of a remedy at law, which
might be asserted as a bar to such remedy of specific performance.

       

      (d) On or
prior to the date hereof, (i) the Subordinated Lien Creditor Representative and
the Senior Lien Administrative Agent shall enter into one or more control
agreements with respect to the deposit accounts and securities accounts of any
Grantor at any financial institution or securities intermediary, constituting
part of the Collateral, in each case, in form and substance reasonably
acceptable to the Senior Lien Administrative Agent and the Subordinated Lien
Creditor Representative, which control agreements shall supersede any existing
control agreements between the Senior Lien Administrative Agent, the
Subordinated Lien Creditor Representative and such financial institution or
securities intermediary, and (ii) the Senior Lien Administrative Agent and the
Subordinated Lien Creditor Representative agree to terminate or amend and
restate such existing control agreements.

       

      
        
          
          

        

        
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      (e) This
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Secured Liabilities is, other than as a
result of any intentional fraud or gross negligence of the applicable Party,
rescinded or must otherwise be returned by the applicable Party in connection
with an Insolvency Proceeding or otherwise, all as though such payment had not
been made.

       

      Section
4.2 Perfection of Possessory or
Control Security Interests.  (a) The Senior Lien Administrative
Agent agrees to hold that part of the Collateral that is in its possession or
control (or in the possession or control of its agents or bailees) to the extent
that possession or control thereof is taken to perfect a Lien thereon under the
UCC (such Collateral being the “Pledged Collateral”) as
collateral agent for the Senior Lien Creditors and as gratuitous bailee for the
Subordinated Lien Creditor Representative (such bailment being intended, among
other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2)
and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting
the security interest granted under the Senior Lien Documents and the Indenture
Documents, respectively, subject to the terms and conditions of this Section
4.2.  Solely with respect to any deposit accounts under the control
(within the meaning of Section 9-104 of the UCC) of the Senior Lien
Administrative Agent, the Senior Lien Administrative Agent agrees to also hold
control over such deposit accounts as gratuitous agent for the Subordinated Lien
Creditor Representative, subject to the terms and conditions of this Section
4.2. The Senior Lien Administrative Agent, the Subordinated Lien Creditor
Representative and the Grantors agree that if the Senior Lien Administrative
Agent shall enter into a control agreement with respect to any deposit account
or securities account of a Grantor, the Subordinated Lien Creditor
Representative will be given notice by such Grantor and sufficient opportunity
to also become a party thereto in order to perfect its security interest in such
deposit account or securities account, as applicable.  If and to the
extent any such control agreement provides for the right of either the Senior
Lien Administrative Agent or the Subordinated Lien Creditor Representative to
give notice or direction to the depository bank or securities intermediary, as
applicable, with respect to such deposit account or securities account, the
Subordinated Lien Creditor Representative hereby agrees that, subject to Section
3.2, it will not give any such notice or direction to any such depository bank
or securities intermediary unless and until the Credit Facility Indebtedness has
been Fully Paid.

       

      (b) The
duties or responsibilities of the Senior Lien Administrative Agent under this
Section 4.2 shall be limited solely to holding the Pledged Collateral as bailee
(and, with respect to deposit accounts, agent) for the Subordinated Lien
Creditor Representative for purposes of perfecting the Lien therein held by the
Subordinated Lien Creditor Representative to secure the Subordinated Lien
Indebtedness and delivering the Pledged Collateral at such time when the Credit
Facility Indebtedness has been Fully Paid as provided in paragraph (c)
below.  The Senior Lien Administrative Agent shall not incur any
liability to any Subordinated Lien Creditor by virtue of acting as gratuitous
bailee and gratuitous agent with respect to the Pledged Collateral pursuant to
this Section 4.2.  The Senior Lien Administrative Agent shall not have
any obligation to any Subordinated Lien Creditor to care for, protect or insure
any Pledged Collateral or to ensure that the Lien on such Pledged Collateral has
been properly or sufficiently created or entitled to any particular
priority.  The Senior Lien Administrative Agent shall be entitled to


       

      
        
          
          

        

        
          16

          
            

          

        

        
          
          
deal with
the Pledged Collateral in accordance with the terms of the Senior Lien Documents
and this Agreement.  The Senior Lien Administrative Agent shall not
have any obligation whatsoever to the Subordinated Lien Creditor Representative
or the other Subordinated Lien Creditors to assure that the Pledged Collateral
is genuine or owned by any Grantor or otherwise or to preserve rights or
benefits of any Person except as expressly set forth in this
Section.  The Senior Lien Administrative Agent shall not have, by
reason of this Agreement or any other document or instrument, a fiduciary
relationship in respect of the Subordinated Lien Creditor Representative or the
other Subordinated Lien Creditors.

      

       

      (c) At such
time when the Credit Facility Indebtedness has been Fully Paid, the Senior Lien
Administrative Agent shall deliver the remaining Pledged Collateral in its
possession (if any) together with any necessary endorsements (such endorsement
shall be without recourse and without any representation or warranty), first, to the
Subordinated Lien Creditor Representative until all Subordinated Lien
Indebtedness is Fully Paid, and second, to the
Grantors to the extent no Credit Facility Indebtedness or Subordinated Lien
Indebtedness remains outstanding (in each case, so as to allow such Person to
obtain possession or control of such Pledged Collateral).  At such
time when the Credit Facility Indebtedness has been Fully Paid, the Senior Lien
Administrative Agent further agrees to take all other action reasonably
requested by the Subordinated Lien Creditor Representative at the expense of the
Grantors to subordinate the Liens of the Senior Lien Administrative Agent in the
Collateral to the Liens of the Subordinated Lien Creditor Representative in the
Collateral.

       

      Section
4.3 Control of Dispositions of
Collateral and Effect thereof on Junior Liens.

       

      (a) Each
Party hereby agrees that any UCC collection, sale or other disposition of
Collateral by the Senior Lien Administrative Agent shall be free and clear of
any Lien of the Subordinated Lien Creditor Representative in such Collateral;
provided that, the
Subordinated Lien Creditor Representative shall retain a Lien (having the same
priority as the Lien it previously had on the item of Collateral that was
collected, sold or otherwise disposed of) on the proceeds of such collection,
sale, or other disposition (except to the extent such proceeds are applied to
the Credit Facility Indebtedness (up to the Maximum Credit Facility Amount) in
accordance with Section
3.4).

       

      (b) To the
extent reasonably requested by any Party, the other Party will cooperate in
providing any necessary or appropriate releases to permit a collection, sale, or
other disposition of Collateral, as provided in Section
4.3(a).

       

      Section
4.4 Certain Other
Collateral.  Subject to Section 4.1(c), unless and until all
Credit Facility Indebtedness has been Fully Paid, (a) any provision of any
Indenture Security Document that requires any Grantor to deliver any Collateral
to the Subordinated Lien Creditor Representative or the Senior Lien
Administrative Agent may be satisfied by the delivery of such Collateral by such
Grantor to the Senior Lien Administrative Agent (or its designee), (b) any
provision of any Indenture Security Document that requires any Grantor to
provide that the Subordinated Lien Creditor Representative or the Senior Lien
Administrative Agent shall have control (as defined in the UCC) over any
Collateral may be satisfied by providing that the Senior Lien Administrative
Agent (or its designee) be provided with control (as defined in the UCC) with
respect to such Collateral, and (c) any provision of any Indenture Security
Document that requires any Grantor to list the Trustee or the Subordinated Lien
Creditor Representative as loss payee or additional insured on any insurance
policy or sole lien holder on any certificate of title relating to the
Collateral, may be satisfied by listing the Senior Lien Administrative Agent as
loss payee or additional insured on any insurance policy or sole lien holder on
any certificate of title relating to the Collateral, in the case of clauses (a),
(b) and (c), for the benefit of all of the Senior Lien Creditors and all of the
Subordinated Lien Creditors.

       

      
        
          
          

        

        
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      Section
4.5 Amendments to Senior Lien
Documents and Indenture Documents.

       

       (a)           The
Senior Lien Documents may be amended, restated, supplemented or otherwise
modified in accordance with their terms, and the Credit Facility Indebtedness
may be refinanced, in each case, without notice to, or the consent of any
Subordinated Lien Creditor, all without affecting the Lien subordination or
other provisions of this Agreement; provided, however, that the
assignee of or successor to the then existing Senior Lien Administrative Agent,
on behalf of the holders of such refinancing debt, agrees in a writing addressed
to the Subordinated Lien Creditor Representative to be bound by the terms of
this Agreement as the new Senior Lien Administrative Agent, Senior Lien
Creditors and holders of Credit Facility Indebtedness hereunder.

       

      (b)           The
Indenture Documents may be amended, restated, supplemented or otherwise modified
in accordance with their terms, and the Subordinated Lien Indebtedness may be
refinanced, in each case, without notice to, or the consent of any Senior Lien
Creditor, all without affecting the Lien subordination or other provisions of
this Agreement, provided, however, that the
Subordinated Lien Creditor Representative, on behalf of the holders of such
refinancing debt, agrees in a writing addressed to the Senior Lien
Administrative Agent to be bound by the terms of this Agreement as the new
Subordinated Lien Creditor Representative hereunder.

       

      (c)           The
Subordinated Lien Creditor Representative, on behalf of the Subordinated Lien
Creditors, agrees that each Indenture Security Document shall include the
following language (or language to similar effect approved by the Senior Lien
Administrative Agent):

       

      “Notwithstanding
anything herein to the contrary, the lien and security interest granted to the
Subordinated Lien Creditor Representative pursuant to this Agreement and the
exercise of any right or remedy by the Subordinated Lien Creditor Representative
hereunder are subject to the provisions of the  Intercreditor
Agreement, dated as of August 6, 2009 (as amended, restated, supplemented or
otherwise modified from time to time, the “Intercreditor Agreement”), by
and between Wells Fargo Foothill, Inc., as Senior Lien Administrative Agent, and
U.S. Bank National Association, as Subordinated Lien Creditor Representative and
Trustee and acknowledged by the Grantors (as defined in the Intercreditor
Agreement).  In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the Intercreditor
Agreement shall govern and control.”

       

      
        
          
          

        

        
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      ARTICLE
V

       

      MISCELLANEOUS

       

      Section
5.1 Rights of
Subrogation.  The Subordinated Lien Creditor Representative
agrees that no payment or distribution to any Senior Lien Creditor pursuant to
the provisions of this Agreement shall entitle the Subordinated Lien Creditor
Representative to exercise any rights of subrogation in respect thereof until
the first date on which the Credit Facility Indebtedness (up to the Maximum
Credit Facility Amount) has been Fully Paid.

       

      Section
5.2 Further
Assurances.  The Parties will, at their own expense and at any
time and from time to time, promptly execute and deliver all further instruments
and documents (in recordable form, if requested), and take all further action,
that may be necessary or desirable, or that any Party may reasonably request, in
order to protect any right or interest granted or purported to be granted hereby
or to enable any Party to exercise and enforce its rights and remedies
hereunder; provided
that, no Party shall be required to pay over any payment or distribution,
execute any instruments or documents, or take any other action referred to in
this Section
5.2 to the extent that such action would contravene any law, order or
other legal requirement binding upon such Party, and in the event of a
controversy or dispute, any Party may interplead any payment or distribution in
any court of competent jurisdiction, without further responsibility in respect
of such payment or distribution under this Section
5.2.  Without limiting the foregoing, but in furtherance
thereof, the Subordinated Lien Creditor Representative agrees, upon the request
of the Senior Lien Administrative Agent (including any replacement of or
successor thereto pursuant to Section 4.5), to execute and deliver to the Senior
Lien Administrative Agent (or its designees and including any replacement of or
successor thereto pursuant to Section 4.5) a subordination of mortgage,
subordination of preferred ship mortgage and subordination of trademark security
interests, in each case in form to be recordable with the applicable
governmental authorities and otherwise in form and substance reasonable
acceptable to the Senior Lien Administrative Agent (including any replacement of
or successor thereto pursuant to Section 4.5) and the Subordinated Lien Creditor
Representative.

       

      Section
5.3 Defenses Similar to
Suretyship Defenses. All rights, interests, agreements and obligations of
each of the Parties under this Agreement, shall remain in full force and effect
irrespective of:

       

      (a) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Secured Liabilities, or any other amendment or waiver of or any
consent to departure from the Financing Documents; provided that, this clause
(a) shall not apply to, and the Subordinated Lien Creditor Representative’s
Liens in the Collateral shall not be subordinated in priority by virtue of this
Agreement to, the Senior Lien Administrative Agent’s Liens therein if and to the
extent that the Credit Facility Indebtedness is increased, without the express
written consent of the Subordinated Lien Creditor Representative, to an amount
in excess of the Maximum Credit Facility Amount;

       

      (b) any
exchange, release, non-enforcement or non-perfection of any Party’s Liens with
respect to any Collateral, or any release, amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Liabilities;
or

       

      
        
          
          

        

        
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      (c) any
failure by any Party to marshal assets in favor of the other Party or any other
Person or to proceed upon or against or exhaust any security or remedy before
proceeding to enforce the Financing Documents.

       

      Section
5.4 Waiver.  Except
as otherwise provided in Section 2.1 and the
other provisions hereof, to the maximum extent permitted by applicable law, each
Subordinated Lien Creditor hereby waives, solely with respect to the Collateral
to which the Lien Priority relates, any failure, omission, delay or lack on the
part of any Senior Lien Creditor to enforce, assert or exercise any right, power
or remedy conferred on such Senior Lien Creditor in any of the Senior Lien
Documents or the inability of such Senior Lien Creditor to enforce any provision
of the Senior Lien Documents or this Agreement.

       

      Section
5.5 Amendments,
Etc.  No amendment or waiver of any provision of this Agreement
nor consent to any departure by any Party shall in any event be effective unless
the same shall be in writing and signed by each Party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that, neither Section 4.2, Section 4.4 nor this
Section 5.5 may
be amended or otherwise modified without the prior written consent of the
Issuers.

       

      Section
5.6 Addresses for
Notices.  All demands, notices and other communications
provided for hereunder shall be in writing and, if to the Subordinated Lien
Creditor Representative or the Trustee, mailed or sent by telecopy or delivered
to it, addressed to it as follows:

       

      U.S. Bank
National Association

      60
Livingston Avenue

      St. Paul,
MN  55107

      Attention:  Corporate
Trust Department

      Facsimile:  (651)
495-8097

       

      and if to
the Senior Lien Administrative Agent, mailed or sent by telecopy or delivered to
it, addressed to it as follows:

       

      Wells
Fargo Foothill, Inc.

      2450
Colorado Avenue, Suite 3000W

      Santa
Monica, CA  90404

      Attention:  Business
Finance Division Manager

      Facsimile:  (310)
453-7413

       

      With a
copy to:

       

      Paul
Hastings Janofsky & Walker, LLP

      600
Peachtree Street, NE, Suite 2400

      Atlanta,
GA  30308

      Attention:  Cindy
J. K. Davis, Esq.

      Facsimile:  (404)
815-2424

       

      
        
          
          

        

        
          20

          
            

          

        

        
          
          

        

      

      or as to
any Party, at such other address as shall be designated by such Party in a
written notice to the other Parties complying as to delivery with the terms of
this Section 5.6.  All such demands, notices and other communications
shall be effective:  when mailed, two business days after deposit in
the mails, postage prepaid; when sent by telecopy, when receipt is acknowledged
by the receiving telecopy equipment (or at the opening of the next business day
if receipt is acknowledged after normal business hours); or when delivered, as
the case may be, addressed as aforesaid.

       

      Section
5.7 No Waiver of
Remedies.  No failure on the part of any Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right.  The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.

       

      Section
5.8 Effectiveness; Continuing
Agreement.  This Agreement shall become effective when executed
and delivered by the parties hereto.  This Agreement is a continuing
agreement and shall (a) be binding upon the parties hereto and their successors
and assigns (including all Senior Lien Creditors and Subordinated Lien
Creditors), and (b) inure to the benefit of and be enforceable by the Parties,
the Senior Lien Creditors and the Subordinated Lien Creditors and their
respective successors, transferees and assigns.

       

      Section
5.9 Governing Law; Entire
Agreement.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.  This
Agreement constitutes the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes any prior
agreements, written or oral, with respect thereto.

       

      Section
5.10 SUBMISSION
TO JURISDICTION; WAIVERS.

       

      (a)           ALL
LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT IN RESPECT
HEREOF, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE. COUNTY AND CITY OF NEW YORK BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH PARTY, FOR ITSELF, IN CONNECTION WITH ITS PROPERTIES AND ON
BEHALF OF THE RESPECTIVE SECURED PARTIES IT REPRESENTS, IRREVOCABLY (i) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS; (II) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE MADE BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE APPLICABLE PARTY AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 5.6; (IV) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE PARTY IN ANY SUCH PROCEED­ING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (V) AGREES THAT
NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER
JURISDICTION.

       

      
        
          
          

        

        
          21

          
            

          

        

        
          
          

        

      

      (b) EACH OF
THE PARTIES HERETO, ON BEHALF OF ITSELF AND THE RESPECTIVE SENIOR LIEN CREDITORS
OR SUBORDINATED LIEN CREDITORS IT REPRESENTS, IF APPLICABLE, HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER.  THE SCOPE OF THIS WAIVER IS INTENDED
TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.  EACH PARTY HERETO, ON BEHALF OF ITSELF AND THE RESPECTIVE
SENIOR LIEN CREDITORS OR SUBORDINATED LIEN CREDITORS IT REPRESENTS, IF
APPLICABLE, ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING
INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS
RELATED FUTURE DEALINGS.  EACH PARTY HERETO, ON BEHALF OF ITSELF AND
THE RESPECTIVE SENIOR LIEN CREDITORS OR SUBORDINATED LIEN CREDITORS IT
REPRESENTS, IF APPLICABLE, FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SECTION 5.10(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
HERETO.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.

       

      Section
5.11 Counterparts.  This
Agreement may be executed in any number of counterparts, and it is not necessary
that the signatures of all parties hereto be contained on any one counterpart
hereof, each counterpart will be deemed to be an original, and all together
shall constitute one and the same document.  Delivery of an executed
counterpart of a signature page of this Agreement or any document or instrument
delivered in connection herewith by facsimile or other electronic transmission
(i.e., a “pdf” or
“tif”) shall be effective as delivery of a manually executed counterpart of this
Agreement or such other document or instrument, as applicable.

       

      Section
5.12 No Third Party
Beneficiary.  This Agreement is solely for the benefit of the
Parties (and their successors and assigns) and the holders of the Secured
Liabilities (including the Senior Lien Creditors and the Subordinated Lien
Creditors).  No other Person (including the Issuers, the other
Grantors and any subsidiary or affiliate of the Issuers, except the Grantors as
expressly set forth in Section 5.5) shall be deemed to be a third-party
beneficiary of this Agreement or shall have any rights to enforce any provisions
hereof.  Nothing in this Agreement shall impair, as between the
Grantors and the Senior Lien Creditors, or as between the Grantors and the
Subordinated Lien Creditors, the obligations of the Grantors to pay principal,
interest, fees and other amounts as provided in the Senior Lien Documents and
the Indenture Documents, respectively.

       

      
        
          
          

        

        
          22

          
            

          

        

        
          
          

        

      

      Section
5.13 Headings.  Section
headings of in this Agreement are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof.

       

      Section
5.14 Severability.  If
any of the provisions in this Agreement shall, for any reason, be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement and
shall not invalidate the Lien Priority or any other priority set forth in this
Agreement.

       

      Section
5.15 Subordinated Lien Creditor
Representative Status. Notwithstanding anything herein to the contrary,
it is hereby expressly agreed and acknowledged that the lien subordination and
related agreements set forth herein by the Subordinated Lien Creditor
Representative are made solely in its capacity as collateral agent under the
applicable Indenture Documents and with respect to the Notes issued under the
Indenture (and not in its individual commercial capacity, except to the extent
that it is or becomes a holder of any Note).  The Subordinated Lien
Creditor Representative shall not have any duties, obligations, or
responsibilities to the Senior Lien Administrative Agent or any other Senior
Lien Creditor under this Agreement except as expressly set forth
herein.  Nothing in this Agreement shall be construed to operate as a
waiver by the Subordinated Lien Creditor Representative, with respect to the
Issuers, the other Grantors or any holder of any Subordinated Lien Indebtedness,
of the benefit of any exculpatory provisions, presumptions, indemnities,
protections, benefits, immunities or reliance rights contained in the Indenture
and in the Indenture Security Documents, and, by its acknowledgment hereof, each
Issuer and each other Grantor expressly agrees that as between itself and the
Subordinated Lien Creditor Representative, the Subordinated Lien Creditor
Representative shall have such benefit with respect to all actions or omissions
by the Subordinated Lien Creditor Representative pursuant to this
Agreement.  For all purposes of this Agreement, the Subordinated Lien
Creditor Representative may (a) rely in good faith, as to matters of fact, on
any representation of fact believed by the Subordinated Lien Creditor
Representative to be true (without any duty of investigation) and that is
contained in a written certificate of any authorized representative of the
Grantors or of the Senior Lien Administrative Agent or any other Senior Lien
Creditor, (b) rely in good faith, as to matters of law, on any advice received
from its legal counsel or an opinion of its counsel, counsel to the Grantors or
counsel to the Senior Lien Administrative Agent or any other Senior Lien
Creditor, and shall have no liability for any action or omission taken in
reliance thereon, and (c) assume in good faith (without any duty of
investigation), and rely upon, the genuineness, due authority, validity, and
accuracy of any certificate, instrument, notice, or other document believed by
it in good faith to be genuine and presented by the proper
person.  The Subordinated Lien Creditor Representative (a) agrees, for
the benefit of the Senior Lien Creditors, that all Liens on Collateral granted
under any Indenture Security Document will be granted to and held by the
Subordinated Lien Creditor Representative and not to or by the Trustee, and (b)
represents and warrants to the Senior Lien Administrative Agent that it has the
power and authority to represent and bind all other Subordinated Lien Creditors
hereunder, and to the extent the Subordinated Lien Creditor Representative is
subject to any prohibitions, restrictions, waivers or consents hereunder, each
other Subordinated Lien Creditor shall be similarly bound.

       

      
        
          
          

        

        
          23

          
            

          

        

        
          
          

        

      

      Section
5.16 Additional Grantors.  Each
Issuer shall cause each of its subsidiaries that becomes a
Grantor to execute and deliver to the parties hereto a Grantor Acknowledgment,
pursuant to which such subsidiary shall acknowledge and agree to the terms,
conditions and other provisions of this Agreement to the same extent as if it
had acknowledged and agreed to the terms, conditions and other provisions of
this Agreement as of the date hereof.  Each Issuer agrees to provide
to the Senior Lien Administrative Agent and the Subordinated Lien Creditor
Representative a copy of each Grantor Acknowledgment executed and delivered
pursuant to this Section 5.16.

       

      


       

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          24 


        

        
           


          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed
and delivered as of the date first above written.

       

      WELLS FARGO FOOTHILL,
INC.,

      as the
Senior Lien Administrative Agent

      


      


      By:   /s/Patrick
McCormack                                                             

            Name:
Patrick McCormack

             Title:
V.P.

      


       

      U.S. BANK NATIONAL
ASSOCIATION,

      as the
Subordinated Lien Creditor Representative

      


      


      By:   /s/Raymond S.
Haverstock                                                        

            Name: 
Raymond S. Haverstock

             Title: 
Vice President


      
        
          
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      ACKNOWLEDGED
AND AGREED:

      DIAMOND
JO, LLC

      


      


      By:   /S/Natalie
Schramm                                                   

            Name:
Natalie Schramm

            Title:
CFO

      


      DIAMOND
JO WORTH, LLC

      


      


      By:   /s/Natalie
Schramm                                                   

            Name:
Natalie Schramm

            Title:
CFO

      


      THE
OLD EVANGELINE DOWNS, L.L.C.

      


      


      By:   /s/Natalie
Schramm                                                   

            Name:
Natalie Schramm

            Title: CFO

      


      PENINSULA
GAMING, LLC

      


      


      By:  /s/Natalie
Schramm                                                    

            Name:
Natalie Schramm

            Title:
CFO

      


      PENINSULA
GAMING CORP.

      


      


      By:  /s/Natalie
Schramm                                                    

            Name:
Natalie Schramm

            Title:
CFO

      


      AB
CASINO ACQUISITION LLC

      


      


      By:  /s/Natalie
Schramm                                                    

            Name:
Natalie Schramm

            Title:
CFO

      



      
        
          
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      PENINSULA
GAMING PARTNERS, LLC

      


      


      By:   /s/ Natalie
Schramm                                                   

            Name:
Natalie Schramm

            Title:
CFO


      
        
          
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      EXHIBIT A

       

      FORM
OF GRANTOR ACKNOWLEDGMENT

       

      Reference
is made to that certain Intercreditor Agreement, dated as of August 6, 2009 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Intercreditor
Agreement”), by and between WELLS  FARGO  FOOTHILL,  INC.,  as
Senior Lien Administrative Agent, and U.S. BANK NATIONAL
ASSOCIATION, as Subordinated Lien Creditor
Representative.  Capitalized terms used herein without definition
shall have the meaning assigned thereto in the Intercreditor
Agreement.

       

      This
Grantor Acknowledgment, dated as of __________, 20__ (this “Grantor Acknowledgment”), is
being delivered pursuant to Section 5.17 of the Intercreditor
Agreement.

       

      The
undersigned, __________, a __________ (the “Additional Grantor”), hereby
acknowledges and agrees to all terms, conditions and other provisions of the
Intercreditor Agreement as a Grantor thereunder, for all purposes thereof on the
terms set forth therein, as fully as if the Additional Grantor had acknowledged
and agreed to the terms, conditions and other provisions of the Intercreditor
Agreement as of the date thereof.

       

      This
Grantor Acknowledgment may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.

      


      THIS
GRANTOR ACKNOWLEDGMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.

      


      The
provisions of Section 5 of the Intercreditor Agreement shall apply with like
effect to this Grantor Acknowledgment.

      


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      IN
WITNESS WHEREOF, the Additional Grantor has caused this Grantor Acknowledgment
to be duly executed by its authorized representative as of the day and year
first above written.

       

      [ADDITIONAL
GRANTOR]

      


      


      
        	
                 
      

              	
                By:_____________________________________

              


      

      
        	
                 
      

              	
                Name:

              


      

      
        	
                 
      

              	
                Title:

              


      

       

      


       


      
        
          
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       Each
of the Senior Lien Administrative Agent and the Subordinated Lien Creditor
Representative acknowledges receipt of this Grantor Acknowledgment and agrees to
act as Senior Lien Administrative Agent and Subordinated Lien Creditor
Representative, respectively, with respect to the Collateral pledged by the
Additional Grantor, as of the day and year first above written.

       

      WELLS FARGO FOOTHILL,
INC.,

      as the
Senior Lien Administrative Agent

      


      


      By:                                                                

            Name:

             Title:

      


       

      U.S. BANK NATIONAL
ASSOCIATION,

      as the
Subordinated Lien Creditor Representative

      


      


      By:                                                                

             
Name:

      
        	
                 
      

              	
                        Title:

              


      

       

      


      


       

      


       


      
        
          
            Intercreditor
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