Exhibit 4.4


 


INTERCREDITOR AGREEMENT


 


THIS
INTERCREDITOR AGREEMENT (“Agreement”), dated as of May 30, 2003, is
entered into by and among BANK OF AMERICA, N.A., as Administrative Agent for
the Lenders under the Credit Agreement referred to below (“Administrative
Agent”), U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Noteholders
referred to below (the “Trustee”) and HARD ROCK HOTEL, INC., a Nevada
corporation (“Borrower”).  All
capitalized terms not otherwise defined herein shall have the meaning set forth
in the Credit Agreement (defined below).


 


RECITALS


 


A.            Pursuant to the Credit Agreement
dated as of May 30, 2003 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”) among Borrower, as borrower,
the lenders from time to time parties thereto (each a “Lender” and
collectively, the “Lenders”) and Administrative Agent, the Lenders have
agreed to provide to Borrower (i) a term loan in the principal amount of
$20,000,000 and (ii) a revolving credit facility in an aggregate principal
amount of $20,000,000.


 


B.            Pursuant to the Credit Agreement,
Borrower has executed a Construction Deed of Trust dated as of May 30,
2003 and effective as of the date hereof (as at any time amended, supplemented
or otherwise modified or replaced, the “Lender Deed of Trust”), a
Security Agreement dated as of the date hereof (as at any time amended,
supplemented or otherwise modified or replaced, the “Lender Security
Agreement”), a Trademark Security Interest Assignment dated as of the date
hereof (as at any time amended, supplemented or otherwise modified or replaced,
the “Lender Trademark Security Agreement”), a Copyright Security
Interest Assignment dated as of the date hereof (as at any time amended,
supplemented or otherwise modified or replaced, the “Lender Copyright
Security Agreement”), the Deposit Account Control Agreement dated as of the
date hereof (as at any time amended, supplemented or otherwise modified or
replaced, the “Lender Control Agreement”), together with Peter A.
Morton, the Trademark Sublicense Consent and Agreement dated as of the date
hereof (as at any time amended, supplemented or otherwise modified or replaced,
the “Lender Trademark Consent Agreement”), and, together with Peter A.
Morton, a Subordination Agreement dated as of the date hereof (as at any time
amended, supplemented or otherwise modified or replaced, the “Lender
Subordination Agreement”).


 


C.            Concurrently herewith, the Borrower
shall issue its $140,000,000 8 7/8% Second Lien Notes due June 1, 2013
(the “Notes”) pursuant to an Indenture dated as of May 30, 2003 among
the Borrower and the Trustee (as amended, supplemented or otherwise modified
from time to time, the “Indenture”).


 


D.            Pursuant to the Indenture, Borrower
has executed a Second Lien Notes Deed of Trust dated as of May 30, 2003
and effective as of the date hereof (as at any time amended, supplemented or
otherwise modified or replaced, the “Second Lien Deed of Trust”), a
Second Lien Notes Security Agreement dated as of the date hereof (as at any
time amended, supplemented or otherwise modified or replaced, the “Second
Lien Security Agreement”), a


 

















 


Second Lien Notes Trademark
Security Interest Assignment dated as of the date hereof (as at any time
amended, supplemented or otherwise modified or replaced, the “Second Lien
Trademark Security Agreement”), a Second Lien Notes Copyright Security
Interest Assignment dated as of the date hereof (as at any time amended,
supplemented or otherwise modified or replaced, the “Second Lien Copyright
Security Agreement”), a Second Lien Notes Deposit Account Control Agreement
dated as of the date hereof (as at any time amended, supplemented or otherwise
modified or replaced, the “Second Lien Account Control Agreement”),
together with Peter A. Morton, a Second Lien Notes Trademark Sublicense Consent
and Agreement dated as of the date hereof (as at any time amended, supplemented
or otherwise modified or replaced, the “Second Lien Trademark Consent
Agreement”) and, together with Peter A. Morton, a Second Lien Notes
Subordination Agreement dated as of the date hereof (as at any time amended,
supplemented or otherwise modified or replaced, the “Second Lien
Subordination Agreement”).


 


E.             It is a condition precedent to the
Lenders’ execution and delivery of the Credit Agreement and the making of the
loans and the issuance of other credit accommodations thereunder that the
Trustee execute and deliver this Agreement on behalf of the Noteholders for the
purpose of subordinating the Liens granted by the Borrower to the Trustee for
the benefit of the Noteholders to the Liens granted by the Borrower to the
Lenders and subordinating the right of the Noteholders to receive certain
principal and interest payments to the rights of the Lenders to receive
payments under the terms of the Credit Agreement, as in the manner and to the
extent set forth herein.


 


F.             Pursuant to Sections 10.1(a) and
10.1(c) of the Indenture each Noteholder has, as a condition to accepting the
Notes, agreed that the liens securing the Notes shall be subject to the terms of
this Agreement and authorized the Trustee to execute and deliver this Agreement
and take all action as is necessary or appropriate to acknowledge and
effectuate the provisions of this Agreement.


 


AGREEMENT


 


NOW,
THEREFORE, the parties hereto agree as follows:


 


1.  Definitions and
Construction.


 


(a)  Definitions.  For purposes of this Agreement, the
following terms shall have the following definitions:


 


“Assets”
means any interest of the Debtors, and of any other Debtors, in any kind of
property or asset, whether real, personal or mixed real and personal, or
whether tangible or intangible.


 


“Bankruptcy
Code” means the Bankruptcy Reform Act, Title 11 of the United States
Code, as amended from time to time, or any successor statute.


 


“Code”
means the Uniform Commercial Code as codified in the State of Nevada.  All terms used in this Agreement which are
defined in the Code shall be construed and defined in accordance with the
meaning and definition ascribed to such terms under the Code, unless another
meaning is specifically provided herein.


 


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“Collateral”
means Assets with respect to which the Administrative Agent on behalf of the
Lenders has a Lien at any time and with respect to which the Trustee on behalf
of the Noteholders has a Lien at any time.


 


“Debtors”
shall include both the Borrower and any other Person at any time assuming or
otherwise becoming primarily liable for all or any part of the obligations of
the Borrower under the Lender Documents, including, but not limited to, the
trustees and the debtors-in-possession in any Insolvency Proceeding of the
Borrower or such other Person.


 


“Distribution
of Assets” means any distribution of the Assets or in respect thereof, or
of the proceeds thereof, of any kind or character, whether in cash, property,
or securities, and whether in respect of repayment of indebtedness or
otherwise, and whether upon foreclosure, sale, liquidation or other disposition
of the Assets by the parties or either of them as secured creditors, including,
but not limited to, adequate protection payments under the Bankruptcy Code.


 


“Insolvency
Proceeding” means, with respect to any Person, (i) any insolvency,
bankruptcy, receivership, total or partial liquidation, reorganization, readjustment,
custodianship, composition or other proceeding or case for protection or relief
from debts or liabilities relating to such Person, any of its subsidiaries, or
any of their respective assets, whether voluntary or involuntary, (ii) any
dissolution or winding up of such Person or any of its subsidiaries, whether
voluntary or involuntary and whether or not involving an insolvency or
bankruptcy case or (iii) any assignment or arrangement for the benefit of
creditors or any other marshalling of any assets of such Person or any of its
subsidiaries.


 


“Lender
Default” means any “Event of Default” as defined in the Credit Agreement.


 


“Lender
Documents” means the Lender Deed of Trust, the Lender Security Agreement,
the Lender Trademark Security Agreement, the Lender Copyright Security
Agreement, the Lender Control Agreement, the Lender Trademark Consent
Agreement, the Lender Subordination Agreement, all other “Loan Documents” as
defined in the Credit Agreement or the instruments, documents and agreements
executed in favor of the lenders under any successor loan documents.


 


“Lender
Obligations” means (i) the “Obligations” as defined in the Credit
Agreement, including any such obligations incurred after the filing of a
petition with respect to any applicable Debtor under any Bankruptcy Code
(including any interest accruing under any Lender Document after the filing of
such petition whether or not allowed or allowable as a claim in any Insolvency
Proceeding with respect to any Debtor); (ii) the obligations of the Debtors
to any lenders directly or indirectly refinancing such Obligations (in whole or
in part), (iii) all obligations owed pursuant to any interest rate hedging
arrangement with respect to such Obligations and any direct or indirect
refinancings thereof; and (iv) all renewals, extensions, refinancings,
refundings, amendments, restatements, supplements, and modifications of all of
the foregoing obligations, provided that in any event the aggregate
principal amount of the loans and letters of credit constituting Lender
Obligations (exclusive of any interest, fees, costs, expenses


 


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or obligations owed pursuant to
any interest rate hedging arrangement) shall not be increased to an amount
which is in excess of the Lender Priority Amount.


 


“Lender
Priority Amount” means $55,000,000 minus the aggregate amount of
outstanding FF&E Financing (as defined in the Indenture).


 


“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest, charge or other encumbrance
of any kind (including any conditional sale or other title retention agreement,
any lease in the nature thereof, and any agreement to give any security
interest) and any agreement to give or refrain from giving a lien, mortgage,
pledge, hypothecation, assignment, deposit arrangement, security interest,
charge or other encumbrance of any kind.


 


“Noteholder
Default” means any “Event of Default” as defined in Section 6.1 of the
Indenture.


 


“Noteholder
Documents” means the Indenture, the Notes, the Second Lien Deed of Trust,
the Second Lien Security Agreement, Second Lien Trademark Security Agreement,
Second Lien Copyright Security Agreement, the Second Lien Account Control
Agreement, the Second Lien Trademark Consent Agreement, Second Lien
Subordination Agreement, any other Collateral Documents (as defined in the
Indenture) or Additional Collateral Documents (as defined in the Indenture) and
any certificates, agreements, instruments or other documents executed in
connection therewith to which any Debtor and/or the Trustee or any Noteholder
are a party.


 


“Noteholder Obligations” means all indebtedness, claims, debts,
liabilities, or obligations of any Debtor owing to the Trustee or the
Noteholders under the Noteholder Documents, in each case, of whatever nature,
character or description, and whether presently existing or arising hereafter,
including, but not limited to, all contract and tort claims that the Trustee or
the Noteholders may have with respect thereto under the Noteholder Documents,
together with interest and fees accruing thereon and costs and expenses
(including attorneys’ fees and expenses) of collection thereof, and all
renewals, extensions, refinancings, refundings, amendments, restatements,
supplements, and modifications thereof.


 


“Noteholders” means the holders from time to time of the Notes
and any instruments, documents or agreements directly or indirectly refinancing
the same.  Subject to the terms hereof
and of the Indenture, any right, remedy, privilege or power of the Noteholders
shall be exercised by the Trustee.


 


“Person” means any natural person, sole proprietorship,
partnership, joint venture, limited liability company, trust, unincorporated
organization, association, corporation, public authority, or any other
organization, irrespective of whether it is a legal entity.


 


(b)  Construction.  Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, to the
singular include the plural, and to the part include the whole, the term
“including” is not limiting, and the term “or” has the inclusive meaning
represented by the phrase “and/or”.  The
words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this
Agreement refer to this Agreement as a whole and not to


 


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any particular provision of
this Agreement.  Section, subsection and
clause references are to this Agreement unless otherwise specified.


 


2.  Lien Subordination.


 


(a)  General.  The Trustee, the Noteholders and the
Borrower each covenant and agree that all of the Liens on the Assets securing
all or any part of the Noteholder Obligations, including without limitation,
the Liens created by the Noteholder Documents, are and shall be subordinate,
junior and inferior and postponed in priority, operation and effect to the
priority, operation and effect of the Liens on the Assets securing all or any
part of the Lender Obligations, including without limitation the Liens created
by the Lender Documents.  The
subordination provided for herein shall be effective notwithstanding the
perfection, order of perfection or failure to perfect or failure to maintain
the perfection of any such Lien or the filing or recording, order of filing or
recording or failure to file or record any instrument or other document in any
filing or recording office in any jurisdiction or the Administrative Agent’s
Liens being invalid, not binding, unenforceable, void, voidable, voided,
subordinated, reduced, disallowed or otherwise set aside in any Insolvency
Proceeding with respect to any Debtor. 
The subordination provided for herein shall constitute a continuing and
accepted offer to all holders, present and future, of the Lender Obligations,
and shall be effective in respect of all obligations, however characterized,
whether principal, interest, fees, indemnity claims or other obligations of the
Debtors constituting Lender Obligations, including without limitation any
interest on the Lender Obligations arising following the filing of any petition
against any Debtor under the Bankruptcy Code. 
Notwithstanding anything to the contrary set forth above, in the event
that the Administrative Agent’s Liens on the Assets securing all or any part of
the Lender Obligations, including without limitation the Liens created by the
Lender Documents are ruled by a court of competent jurisdiction to be invalid,
not binding, unenforceable, void, voidable, voided, subordinated, reduced,
disallowed or otherwise set aside in any legal proceeding, including any
Insolvency Proceeding with respect to any Debtor, by reason of the willful
misconduct of the Administrative Agent or any one or more of the Lenders, then
the Liens of the Noteholder Documents shall not be subject to this Section 2.


 


(b)  Subordination on
Dissolution, Liquidation or Reorganization of Debtors.


 


(i)            Upon any
Distribution of Assets, whether in the event of any Insolvency Proceeding of
any Debtor or otherwise and regardless of whether any of the Administrative Agent’s
Liens on the Assets have been found invalid, not binding, unenforceable, void,
voidable, voided, subordinated, reduced, disallowed or otherwise set aside in
any legal proceeding, then:


 


(A)          all
amounts payable under or on account of the Lender Obligations shall first be
indefeasibly paid in full and in cash from such Distribution of Assets, before
the holders of Noteholder Obligations shall be entitled to receive any
Distribution of Assets; and


 


(B)           before
any payment may be made on account of the Noteholder Obligations, any such
Distribution of Assets to which the Noteholders would be entitled, but for the
provisions of this Section 2(b)(i), shall be made directly to the


 


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Administrative Agent for the benefit of the Lenders to the extent
necessary to indefeasibly pay all Lender Obligations in full, in cash, after
giving effect to any concurrent payment or distribution to the Administrative
Agent for the benefit of the Lenders. 
In the case of a non-cash Distribution of Assets with respect to the
Noteholder Obligations which is delivered to the Administrative Agent for the
benefit of the Lenders under this Section 2(b)(i), the Lender Obligations
shall be deemed satisfied in the amount equal to the cash realized by the
Lenders upon disposition of such Distribution of Assets; until such
disposition, the non-cash Distribution of Assets shall be held as security for
the Lender Obligations.  Neither the
Administrative Agent nor any Lender shall have any duty hereunder to sell or
otherwise reduce to cash any non-cash Distribution of Assets turned over by the
Trustee or any Noteholder in accordance with this Section 2(b)(i), and
neither the Administrative Agent nor any Lender shall have any liability to the
Trustee or any Noteholder with respect to any such sale or other disposition,
under the Code or otherwise, except for liability arising from the
Administrative Agent’s or any Lender’s willful misconduct or gross negligence,
and such sale or other disposition shall not affect the Administrative Agent’s
and the Lender’s rights and remedies hereunder.


 


(ii)           The Administrative
Agent (on behalf of the Lenders) is hereby irrevocably authorized and empowered
(in its own name or in the name of the Trustee, the Noteholders or otherwise),
but shall have no obligation, to demand, sue for, collect and receive every
Distribution of Assets and give acquittance therefore and take such other
action on behalf of the Noteholders as it may deem necessary for the exercise
or enforcement of any of the Lenders’ rights or interests hereunder.  The Trustee and the Noteholders shall duly
and promptly take such action as the Administrative Agent may request (A) to
collect the Noteholder Obligations for the account of the Lenders and to file
appropriate claims or proofs of claim in respect of the Noteholder Obligations,
(B) to execute and deliver to the Administrative Agent such powers of
attorney, assignments, or other instruments as it may reasonably request in
order to enable it to enforce any and all claims with respect to, and any Liens
securing payment of, the Noteholder Obligations, and (C) to collect and
receive any and all Distribution of Assets which may be payable or deliverable
upon or with respect to the Noteholder Obligations.


 


(c)  Bankruptcy
Reorganizations.  Without limitation
upon Section 2(b) hereof, to the extent that any proceeding under the
Bankruptcy Code results in the reorganization of the affairs of the Debtors,
the Trustee and the Noteholders shall not vote for or approve any plan of
reorganization which does not result in the full and immediate payment in cash
of the Lender Obligations which the Lenders have not voted for or approved or which does any
of the following:


 


(i)            extends the term of
the Lender Obligations or delays or reduces any payment to which the Lenders
would have been entitled but for the existence of such proceeding;


 


(ii)           requires
Administrative Agent or the Lenders to release any collateral or guarantees for
the Lender Obligations or requires the Lenders to share any collateral or
guarantees with any other Person (other than the Noteholders to the same extent
permitted


 


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herein) or requires the liens
of Administrative Agent or the Lenders to be subject or subordinate to the
liens of any Person, including without limitation the provider of any
“debtor-in-possession” financing or similar arrangements; or


 


(iii)          otherwise requires
Administrative Agent or the Lenders to accept “adequate protection” for their
claims in lieu of full and immediate cash payment or first priority Liens on
the Assets (subject only to liens and encumbrances then permitted by the terms
of the Lender Obligations).


 


(d)  Subordination of Title
Insurance Claims.  In the event that
the Lenders and the Noteholders suffer any loss for which they are insured by
title insurance in relation to the property purportedly encumbered by the
Lender Deed of Trust or are otherwise entitled to assert a claim against such
insurers, and for which the same insurers are liable to both the Administrative
Agent (for the benefit of the Lenders) and the Trustee (for the benefit of the
Noteholders), or as to which both Administrative Agent and the Trustee may
assert such a claim), then the claims of the Trustee against such title
insurers in respect to such losses shall be in every respect subordinated and
junior to the claims of the Administrative Agent against such title insurers.


 


(e)  Legends.  Each instrument, document and agreement
evidencing any Lien held by the Trustee or the Noteholder on account of the
Noteholder Obligations shall bear a prominent legend as follows (unless
otherwise consented to, in writing, by the Administrative Agent):


 


“PURSUANT TO AN INTERCREDITOR AGREEMENT DATED AS OF MAY 30, 2003, THE
LIENS GRANTED PURSUANT TO THIS INSTRUMENT ARE SUBJECT AND SUBORDINATE TO THE
LIENS GRANTED TO BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT.”


 


(f)  No New Liens.  So long as the Lender Obligations have not
been indefeasibly paid in full in cash and the commitments of the Lenders to
provide financing under the Lender Documents terminated, the parties hereto
agree that (a) Borrower shall not, and shall not permit any other Debtor to,
grant or permit any additional Liens on any asset to secure any Noteholder
Obligations and no such Lien purporting to secure the Noteholder Obligations,
or any portion thereof, shall be deemed granted or permitted, unless, in each
case, Borrower or such other Debtor has also granted a Lien on such asset to
Administrative Agent to secure the Lender Obligations; and (b) Borrower shall
not, and shall not permit any other Debtor to, grant or permit any additional
Liens on any asset to secure any Lender Obligations and no such Lien purporting
to secure the Lender Obligations, or any portion thereof, shall be deemed
granted or permitted, unless, in each case, to the extent required under the
Noteholder Documents and commercially feasible, Borrower or such other Debtor
has also granted a Lien on such asset to Trustee to secure the Noteholder
Obligations.


 


3.  Remedies Standstill.


 


(a)  The Trustee shall give
written notice to the Administrative Agent of each Noteholder Default of which
it otherwise asserts against any of the Debtors (each a “Noteholder


 


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Default Notice”).  For so long as any Lender Obligations remain
outstanding and unpaid, neither the Trustee nor the Noteholders shall, for a
period of 179 days after the date upon which any Noteholder Default Notice is
given (each such 179 day period (as extended pursuant to clause (c) of
this Section, a “Standstill Period”), without the Administrative Agent’s
prior written consent, given in the Administrative Agent’s sole and absolute
discretion:  (i) exercise any right of
set-off with respect to the Noteholder Obligations with respect to any Assets
in its possession or control; (ii) exercise any right of possession of any
Collateral securing the Noteholder Obligations or attach, seize, or realize
upon any Collateral securing the Noteholder Obligations or otherwise enforce
any Lien against the Assets or authorize or direct any trustee under any deed
of trust to do so; or (iii) exercise any right under the Code, including, but
not limited to, the right of strict foreclosure, but excluding the right of
redemption in respect of any Asset.


 


(b)  No additional Standstill
Period shall commence on the basis of any Noteholder Default which occurs or is
asserted during any Standstill Period, provided that (unless the
Administrative Agent otherwise consents in writing in its sole discretion), if
the Trustee has not accelerated the balance of the Noteholder Obligations
within the sixty day period following the end of any Standstill Period, then
the Trustee shall be obliged to give a new Noteholder Default Notice to the
Administrative Agent and to observe a new Standstill Period with respect to any
Noteholder Defaults thereafter asserted.


 


(c)  In the event that, during
or after any Standstill period, either (i) an Insolvency Proceeding is commenced
with respect to any Debtor, or (ii) the maturity of the Lender Obligations is
accelerated and the Administrative Agent or the Lenders commence any
foreclosure or enforcement proceedings with respect to the liens securing the
Lender Obligations, then the Standstill Period shall be extended until such
time as (y) the Lender Obligations are indefeasibly paid in full and in cash,
or (z) the Lenders rescind such acceleration. 
During the Standstill Period, as so extended, the Trustee and the
Noteholders shall not without the Administrative Agent’s prior written consent,
given in the Administrative Agent’s sole and absolute discretion:  (i) exercise any right of set-off with
respect to the Noteholder Obligations with respect to any Assets in its
possession or control; (ii) exercise any right of possession of any Collateral
securing the Noteholder Obligations or attach, seize, or realize upon any
Collateral securing the Noteholder Obligations or otherwise enforce any Lien
against the Assets or authorize or direct any trustee under any deed of trust
to do so; or (iii) exercise any right under the Code, including, but not
limited to, the right of strict foreclosure, but excluding the right of
redemption in respect of any Asset.


 


(d)  If the Trustee or the
Noteholders take any action in violation of this Section 3, (i) the
Administrative Agent may intervene in any proceeding seeking to enforce the
Liens of the Noteholders or otherwise seek judicial restraint of such action,
and (ii) the applicable Debtors may interpose as a defense or a dilatory plea
the making of this Agreement and Administrative Agent and the Lenders may
intervene and interpose such defense or plea in the names of the applicable
Debtors.  If the Trustee or the
Noteholders, other  than in accordance with this Section 3,
attempt to enforce any Lien with respect to the Noteholder Obligations,
Administrative Agent, the Lenders or the applicable Debtors may, by virtue of
this Agreement, restrain the enforcement thereof in the name of Administrative
Agent, the Lenders or such Debtors.


 


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(e)  Each Debtor covenants and
agrees to toll, upon the Noteholders’ request, the statute of limitations with
respect to any action which the Noteholders might bring but for the provisions
of this Section 3.


 


4.  Payment Subordination.  The Administrative Agent and the Lenders
shall be entitled to the full and indefeasible payment and performance of the
Lender Obligations from the Assets and the proceeds thereof prior to any payment
or performance of the Noteholder Obligations from the Assets and the proceeds
thereof.  In furtherance thereof, the
Debtors agree that (a) following the giving of written notice by the
Administrative Agent to the Borrower of the occurrence of any Lender Default
which is a default in the payment of money (including any Lender Default which
has resulted in an acceleration of the Lender Obligations) or (b) the filing of
any proceeding under the Bankruptcy Code with respect to either of the Debtors,
the Debtors shall not make (and the Trustee and the Noteholders agree that,
they shall not take and receive) any payments with respect to the Noteholder
Obligations from the Assets or the proceeds thereof and (b) following the
giving of written notice by the Administrative Agent to the Borrower of the
occurrence of any other Lender Default which may, with the lapse of time or the
giving of notice, result in an acceleration of the Lender Obligations, the
Debtors shall not make (and the Trustee and the Noteholders agree that, they
shall not take and receive) any payments with respect to the Noteholder
Obligations whether from the Assets, the proceeds thereof or otherwise until
the earlier to occur of (i) the waiver or cure, in accordance with the terms of
the Lender Documents, of such Lender Default or (ii) the expiration of 179 days
after Borrowers receipt of such notice without the Lender Obligations having
been accelerated or an Insolvency Proceeding being commenced with respect to
any Debtor during such 179-day period. 
No nonpayment default that existed or was continuing on the date of
delivery of any notice to the Trustee by the Administrative Agent pursuant to
clause (b) above, and which is known to the Lenders, shall be, or be made, the
basis for a subsequent notice pursuant to clause (b) above (unless such
nonpayment default shall have been cured or waived for a period of not less
than 181 days).  Any payment made in
violation of this Section 4 shall be held by the Trustee in the manner
described in Section 6. 
Notwithstanding anything to the contrary set forth above, in the event
that the Administrative Agent’s rights to receive payment in respect of the
Lender Obligations are ruled by a court of competent jurisdiction to be
subordinated to the claims of unsecured creditors or otherwise set aside in any
legal proceeding, including any Insolvency Proceeding with respect to any
Debtor, by reason of the willful misconduct of the Administrative Agent or any
one or more of the Lenders, then the rights of the Noteholders in respect of
the Noteholder Obligations shall not be subject to this Section 4.


 


5.  Disposition of Collateral.  Upon any foreclosure upon, or realization or
collection in respect of, any Collateral, whether such actions taken are by or
on behalf of Administrative Agent, the Lenders, Trustee or the Noteholders or
otherwise, all Lender Obligations shall first be indefeasibly satisfied in full
in cash from the proceeds thereof, before the Noteholders shall be entitled to
receive or retain any proceeds or Assets from such foreclosure, realization or
collection.


 


6.  Payments and/or Property
Held in Trust.  If (a) any payment
or other distribution (whether in cash or other property) is made to the
Trustee or the Noteholders in violation of this Agreement or (b) any cash or
other property is received by the Trustee or the Noteholders upon any
disposition or other action with respect to any of the Collateral, including,
but not limited to,


 


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converting accounts receivable,
instruments and chattel paper to cash, in violation of this Agreement, before
the Lender Obligations are indefeasibly paid in full, in cash, and the
commitments of the Lenders under the Credit Agreement are terminated or expire,
then the Trustee and the Noteholders shall receive the same in trust for the
Lenders’ benefit and shall forthwith remit the same to the Administrative Agent
for the benefit of the Lenders in the form in which the same was received,
together with such endorsements or documents as may be necessary to effectively
negotiate or transfer the same, to the extent necessary to indefeasibly pay in
full, in cash, the Lender Obligations, after giving effect to any other payment
or distribution with respect to the Lender Obligations.


 


7.  Trustee’s and
Noteholders’ Representations, Warranties and Covenants.  The Trustee represents and warrants that it
has not entered into any subordination agreement with respect to any Lien
securing the Noteholder Obligations prior to the execution and delivery of this
Agreement.  The Trustee covenants not to
enter into any subordination agreement with respect to any Lien securing the
Noteholder Obligations without the Lenders’ prior written consent, given in
their sole and absolute discretion through the Administrative Agent.  Any and all such subsequent subordinations
shall be, and shall be expressed to be, subject and subordinate to the terms of
this Agreement.


 


8.  Rights of The Lenders Not
to Be Impaired, Etc.


 


(a)  No right of the
Administrative Agent or any Lender to enforce the subordination and other terms
and conditions provided herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act by the Administrative Agent or any
Lender, or by any non-compliance by any Debtor with the terms and provisions
and covenants herein, regardless of any knowledge thereof the Administrative
Agent or any Lender may have or with which the Administrative Agent or any
Lender may otherwise be charged, except as set forth herein with respect to the
willful misconduct of Administrative Agent or any Lender. The Administrative
Agent and the Lenders shall not be prejudiced in their right to enforce the
subordination of any Liens securing the Noteholder Obligations by any act or
failure to act by any Debtor or any other Person in custody of any of the
Assets.


 


(b)  Without limiting the
generality of the foregoing, the Trustee and the Noteholders, for the benefit
of Administrative Agent and the Lenders, waive any right the Trustee or the Noteholders
may have to require Administrative Agent and the Lenders to (i) proceed against
any Person, including the Debtors; (ii) proceed against or exhaust any security
held from any Debtor or any other Person; or (iii) pursue any other remedy in
such Person’s power.


 


(c)  The Trustee and the
Noteholders further waive, for the benefit of Administrative Agent and the
Lenders, any defense or cause of action based upon or arising by reason of (i)
any disability or other defense of any Debtor or any other Person; (ii) the
cessation or limitation from any cause whatsoever, other  than
indefeasible payment in full in cash, of the Lender Obligations; (iii) any lack
of authority of any officer, director, partner, agent or any other Person
acting or purporting to act on behalf of any Debtor; (iv) any act or omission
by the Administrative Agent or the lenders which directly or indirectly results
in or aids the discharge of any Debtor or any Lender Obligations by operation
of law or otherwise, except as set forth


 


10

















 


herein with respect to the
willful misconduct of Administrative Agent or any Lender; (v) any failure by
the Administrative Agent, the Lenders or their agents to use reasonable care in
the custody and preservation of Collateral in the possession of the
Administrative Agent, the Lenders or their agents which directly or indirectly
impair or diminishes the value of the Liens securing the Noteholder
Obligations; or (vi) any failure by the Administrative Agent, the Lenders or
their agents to fulfill any duty owed to the Noteholders as bailee or agent
with respect to any of the Collateral.


 


(d)  The Trustee and the
Noteholders agree that the Lenders shall have the right to apply the proceeds
of any disposition of Collateral in the manner Administrative Agent and the
Lenders determine, in their sole and absolute discretion, provided that such
application complies with applicable law and this Agreement.  Notwithstanding the foregoing sentence, any
proceeds of any such disposition of Collateral remaining in the possession of
the Administrative Agent or the Lenders after the Lender Obligations have been
indefeasibly paid in full in cash shall be paid by the Administrative Agent to
the Trustee for application to the Noteholders Obligations.


 


(e)  The Trustee and the
Noteholders agree that (i) neither the Administrative Agent nor any Lender
shall have any obligation to marshal any Collateral in favor of the Noteholders
or any other Person; and (ii) neither the Administrative Agent nor the Lenders
shall be liable to the Trustee or the Noteholders for any action or failure to
act in exercising their rights and remedies under this Agreement, the Lender
Documents or against any of the Collateral.


 


(f)  If, (A) in connection with:
(i) the exercise of the Administrative Agent’s remedies in respect of the
Collateral provided for under the terms of the Lender Documents, including any
sale, lease, exchange, transfer or other disposition of such Collateral; or
(ii) any sale, lease, exchange, transfer or other disposition of Collateral (or
release of any guarantor from its obligations under its guaranty of the Lender
Obligations) in each case as permitted under the terms of the Credit Agreement
(whether or not an event of default under, and as defined therein, has occurred
and is continuing) and permitted or not prohibited under the Indenture; or
(iii) any agreement between the Administrative Agent and the Borrower to
release the Administrative Agent’s Lien on any portion of the Collateral or to
release any guarantor from its obligations under its guaranty of the Lender
Obligations, which release is not otherwise prohibited by the terms of the
Indenture as reasonably determined by the Trustee, and (B) the Administrative
Agent, for itself or on behalf of any of the Lenders, releases any of its Liens
on any part of the Collateral (or any guarantor from its obligations under its
guaranty of the Lender Obligations), then, in such event, the
Liens of the Collateral Agent, for itself or for the benefit of the
Noteholders, on such Collateral ( and the obligations of such guarantor under
its guaranty of the Noteholder Obligations) shall be (immediately in the case
if a event under subsections (A)(i) and (A)(ii) above, but in the case of
subsection (A)(iii) only after reasonably prompt delivery of written notice by
the Collateral Agent to the Borrower and Administrative Agent of the Collateral
Agent’s reasonable determination that such release is not otherwise prohibited
under the Indenture) automatically,  unconditionally and
simultaneously released and the Collateral Agent, for itself or on behalf of
any such Noteholder, promptly shall execute and deliver to the Administrative
Agent or the Borrower such termination statements, releases and other documents
as the Administrative Agent or the Borrower may request to effectively confirm
such release.  For avoidance of doubt,
in the case of a release authorized by notice of the Collateral Agent


 


11

















 


under subsection (A)(iii), such
release shall be effected simultaneously with the delivery of the required
written notice by the Collateral Agent. 
The Collateral Agent, for itself and on behalf of the Noteholders,
hereby irrevocably constitutes and appoints the Administrative Agent and any
officer or agent of the Administrative Agent, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Collateral Agent or in the Administrative
Agent’s own name, from time to time in the Administrative Agent’s discretion,
for the purpose of carrying out the terms of this Section 8(f), to take any and
all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this Section
8(f), including, without limitation, any financing statements, endorsements or
other instruments or transfer or release. 
For avoidance of doubt, this power of attorney shall not extend to the
determination or notice required under subsection (iii), which must be given
reasonably promptly by the Collateral Agent, nor shall Administrative Agent use
this power of attorney to release Liens in respect of an event under subsection
(iii) unless and until the required written notice has been delivered by the
Collateral Agent.


 


(g)  The Trustee and the
Noteholders agree that the Liens against the Collateral securing the Noteholder
Obligations shall terminate upon exercise of the Administrative Agent’s and/or
the Lenders’ strict foreclosure rights under the Code, whether or not the Liens
would terminate pursuant to the Code. 
Administrative Agent is hereby irrevocably authorized and empowered (in
its own name or in the name of the Trustee and/or the Noteholders or otherwise)
to take all actions reasonably and necessary to effect such termination.


 


(h)  The Trustee and the
Noteholders (i) consent to any extension or renewal of the Liens securing the
Lender Obligations, (ii) waive any right to cure any Lender Default, whether by
payment or any portion of the Lender Obligations or otherwise (but without
prejudice to any rights of redemption or similar rights available to the
Trustee and the Noteholders pursuant to applicable law), (iii) waive any right
to set aside or otherwise legally challenge any foreclosure sale or other
exercise of rights and remedies by Administrative Agent or the Lenders, (iv)
waive any right to redeem any Collateral foreclosed upon or otherwise disposed
of by Administrative Agent or the Lenders, (v) agree not to contest the
commercial reasonableness of any sale of the Collateral by Administrative Agent
or the Lenders, (vi) agree to cooperate with Administrative Agent and the
Lenders in connection with any foreclosure sale or other exercise of rights and
remedies by them, and (vii) agree that the Liens securing the Noteholder
Obligations shall be extinguished with respect to any Collateral foreclosed
upon or otherwise disposed of by Administrative Agent or the Lenders in
accordance with applicable law.


 


(i)  The Trustee and the
Noteholders agree that neither the Administrative Agent nor any Lender shall be
a fiduciary or an agent of the Trustee or the Noteholders, or otherwise owe any
duty to the Trustee or the Noteholders, by virtue of any provision of this
Agreement or the Administrative Agent’s or the Lenders’ exercise, or failure to
exercise, any right hereunder.


 


9.  Bailee for Certain
Collateral.


 


(a)  Solely for the purposes of
perfecting any Liens granted to Trustee therein and in all respects subject to
the terms of this Agreement, the Administrative Agent agrees to hold


 


12

















 


any Collateral that is in its
possession or control (or in the possession or control of its agents or
bailees, in each case, the “Bailee Collateral”) as bailee for the
Lenders and the Trustee.


 


(b)  The rights of the Trustee
in Bailee Collateral shall at all times be subject to the terms of this
Agreement.  Except as expressly required
by the terms of this Agreement, Administrative Agent shall be free to deal with
the Bailee Collateral in accordance with the terms of the Lender Documents and
any applicable laws as if the Liens of the Trustee therein did not exist.


 


(c)  The Administrative Agent
shall have no obligation whatsoever to any Lenders, the Trustee or any
Noteholder to assure that the Bailee Collateral is genuine or owned by any of
the Debtors or to preserve rights or benefits of any Person except as expressly
set forth in this Section 9.  The duties
or responsibilities of the Administrative Agent under this Section 9 shall be
limited solely to holding the Bailee Collateral as bailee in accordance with
this Section 9.


 


(d)  The Administrative Agent
acting pursuant to this Section 9 shall not have by reason of any Lender
Document, any Noteholder Document, this Agreement or any other document, a
fiduciary relationship in respect of any Lender, the Trustee, any Noteholder or
any successor Administrative Agent.


 


(e)  Upon the indefeasible
payment in full of the Lender Obligations and the termination of the Lenders’
commitments to provide financing under the Lender Documents, Administrative
Agent shall, without representation or warranty of any kind other than as to
authority to transfer, deliver any remaining Bailee Collateral in its
possession or under its control together with any necessary endorsements to the
Trustee if any Noteholder Obligations remain outstanding, and if no Noteholder
Obligations remain outstanding, then to Borrower (in each case, solely for the
purpose of allowing such Person to obtain possession or control, as the case
may be, of such Bailee Collateral). 
Such Administrative Agent further agrees to take all other action
reasonably requested by such Person to effectuate any transfer of possession or
control of the Bailee Collateral contemplated by this Section 9.


 


(f)  In the event Trustee is
permitted, under the terms of this Agreement, to exercise any of its remedies
with respect to a deposit account which is subject to both the Lender Control
Agreement and the Second Lien Control Agreement, or subject to separate control
agreements in favor of Administrative Agent and Trustee respectively which
prohibit Trustee from exercising control without the consent of Administrative
Agent, to the extent Administrative Agent is not and does not intend to
exercise control over such deposit accounts, Administrative Agent shall, upon
request by Trustee, notify the relevant depository institution of its consent
to such exercise of remedies.


 


10.  Conduct of Insolvency
Proceeding.


 


(a)  In any Insolvency
Proceeding of any Debtor, the Trustee and the Noteholders agree that if the
Trustee or any Noteholder has not filed a proof of claim with respect to the
Noteholder Obligations on or prior to the date that is thirty days before the
expiration of the time to file any such proof of claim, the Trustee or such
Noteholder will be deemed to have


 


13

















 


irrevocably appointed the
Administrative Agent its agent and attorney-in-fact (i) to make, file and
present for and on behalf of the Trustee or such Noteholder such proofs of
claims against any Debtor on account of the Noteholder Obligations and (ii) to
vote such claims in such proceedings (in the name of the Lenders or the Trustee
or such Noteholder as the Administrative Agent may deem necessary or advisable)
if the Trustee or such Noteholder fails to vote such claim on or prior to the
date that is ten days before the expiration of the time to vote any such claim;
provided that the Administrative Agent shall have no obligation to make, file,
present and/or vote any such proof of claim. 
In the event the Administrative Agent votes any claim of the Trustee or
any Noteholder in accordance with its authority granted hereby, the Trustee or
such Noteholder, as applicable, shall not be entitled to change or withdraw
such vote.


 


(b)  The Trustee and the
Noteholders agree that Administrative Agent (on behalf of the Lenders) may
consent to the use of cash collateral or provide financing to any applicable
Debtor on such terms and conditions and in such amounts as they, in their sole
and absolute discretion, may decide and that, in connection with such cash
collateral usage or such financing, such Debtor (or a trustee appointed for the
estate of such Debtor) may grant to the Administrative Agent, on behalf of the
Lenders, Liens upon all Assets, which Liens (i) shall secure payment of all
Lender Obligations (whether such Lender Obligations arose prior to the filing
of the petition for relief under the Bankruptcy Code or arise thereafter); provided,
that, the aggregate principal amount of the loans and letters of credit
constituting Lender Obligations (exclusive of any interest, fees, costs,
expenses or obligations owed pursuant to any interest rate hedging arrangement)
so secured shall not exceed the Lender Priority Amount; and (ii) shall be
superior in priority to the Liens held by Trustee for the benefit of the
Noteholders on the Assets.  All
allocations of payments between the Lenders and the Noteholders shall, subject
to any court order, continue to be made after the filing of a petition under
the Bankruptcy Code on the same basis that the payments were to be allocated
under the terms of this Agreement prior to the date of such filing.  The Trustee and the Noteholders agree that
neither the Trustee nor the Noteholders, respectively, will object to or oppose
a sale or other disposition of any Assets securing the Lender Obligations (or
any portion thereof) free and clear of Liens or other claims of the Trustee and
the Noteholders under Section 363 of the Bankruptcy Code or any other
provision of the Bankruptcy Code if Administrative Agent and the Lenders have
consented to such sale or disposition of such Assets.  The Trustee and the Noteholders agree that they will not seek to
have the automatic stay lifted with respect to the Noteholder Obligations and
the Liens securing the Noteholder Obligations, in each case without
Administrative Agent’s and the Lenders’ prior written consent, given in their
sole and absolute discretion.  The
Trustee and the Noteholders agree not to initiate or prosecute any claim,
action or other proceeding (i) challenging the enforceability of the Lenders’
claim or the terms of any Lender Document, or (ii) challenging the enforceability
of any Liens in Assets securing the Lender Obligations or the priority thereof.


 


11.  Call Right in Favor of
the Noteholders.  The Administrative
Agent agrees on behalf of the Lenders that, unless a proceeding under the
Bankruptcy Code has been filed in respect of any of the Debtors, it shall
provide written notice of any acceleration of the maturity of the Lender
Obligations to the Trustee (the “Call Notice”) and that the Noteholders
shall have, during the thirty day period following such notice, the right to
purchase the Lender Obligations from the Lenders for a purchase price equal to
the outstanding principal balance thereof (including any outstanding letters of
credit and other similar financial accommodations), plus all accrued and


 


14

















 


unpaid interest, fees and other
amounts due to the Administrative Agent or the Lenders under the Lender
Documents, provided that the Trustee and the Noteholders shall make
arrangements reasonably acceptable to the Administrative Agent for backup
indemnification for any contingent liabilities of the Debtors and their
affiliates under the Lender Documents. 
The Trustee and the Noteholders further agree that neither the Administrative
Agent nor the Lenders will have any disclosure duty to the Trustee or
Noteholders, respectively, other  than to inform the Trustee of
the amount of the Lender Obligations, and the Trustee agrees that neither the
Administrative Agent nor the Lenders make any representation or warranty with respect
to the Lender Obligations (except for their legal authority to sell and make
settlements thereof), the Collateral or any other matter the Trustee and the
Noteholders waive any claim which the Trustee or the Noteholders, respectively,
may have against the Administrative Agent or the lenders with respect to the
Lender Obligations and the collateral as a result of exercising their rights
under this Section.  In conjunction with
the exercise of the Noteholders’ rights under this Section, the Noteholders exercising
such rights agree to execute and deliver all documentation requested by
Administrative Agent or the Lenders which is necessary to effectuate the
foregoing agreements and waivers.  The
sole obligation of the Trustee hereunder shall be to deliver the Call Notice to
the Noteholders following receipt thereof from the Administrative Agent.


 


12.  Subrogation.  Upon the indefeasible payment in full, in
cash, of the Lender Obligations and the termination or expiration of the
Lender’s commitments to provide financing under the Lender Documents, the
Noteholders shall be subrogated to the rights of the Lenders to receive any
Distribution of Assets made on account of the Lender Obligations to the extent
that distributions otherwise payable to the Noteholders have been applied to
payment of Lender Obligations, until the Noteholder Obligations shall be paid
in full; and for the purposes of such subrogation, no Distribution of Assets to
Administrative Agent or the Lenders of any cash, property, or securities to which
the holders of Noteholder Obligations would be entitled except for the
provisions hereof, and no payment paid over pursuant to the provisions of
Section 6 to Administrative Agent or the Lenders by the Noteholders shall, as
among the Debtors, their respective creditors, and the Noteholders, be deemed
to be a payment by the Debtors to or on account of such Lender
Obligations.  Neither the Administrative
Agent nor the Lenders shall have any liability to the Trustee or the
Noteholders, and the subordination and other provisions of this Agreement shall
not be affected by, any act or omission by the Administrative Agent or the
Lenders, prior to indefeasible payment in full, in cash, of the Lender
Obligations and the termination or expiration of the Lenders’ commitments to
provide financing under the Lender Documents, which affect in any way the
Noteholders’ subrogation rights hereunder.


 


13.  Obligations of Debtors
Unconditional.  Nothing contained in
this Agreement is intended to or shall, as among the Debtors or their
respective creditors, impair the obligations of the Debtors, which obligations
are absolute and unconditional, to pay the Lender Obligations and the
Noteholder Obligations as and when the same shall become due and payable in
accordance with their terms.  Nothing
contained in this Agreement is intended to or shall, as among the Debtors or
their respective creditors, affect the relative rights of the Noteholders and
other creditors of the Debtors (other  than between the
Noteholders and the Lenders).


 


14.  Further Assurances;
Continuing Offer.  The Trustee and
the Noteholders agree to take such actions and execute, acknowledge and
deliver, or cause to be executed, acknowledge and delivered, such documents as
are reasonably requested by a Debtor or the Administrative Agent


 


15

















 


to effectuate and carry out the
purposes of this Agreement and the subordination provisions hereunder, so long
as any such acts are consistent with and do not impose terms of subordination
more onerous than the terms hereof. 
This Agreement shall constitute a continuing offer to all Persons who
become holders of or continue to hold any Lender Obligations and to any holders
of indebtedness used to refinance the Lender Obligations.  In the event the Lender Obligations are
refinanced, in whole or in part, upon request by holders of such refinancing
indebtedness (or their agent), Trustee and the Debtors shall execute for their
benefit an intercreditor agreement substantially in the form of this Agreement.


 


15.  Modification and
Expansion of Lender Obligations; No Modification of Noteholder Documents.  Notwithstanding any term of the Noteholder
Documents to the contrary, Administrative Agent and/or the Lenders may (i) take
any action with respect to the Lender which they are permitted to take under
the Lender Documents or applicable law, (ii) grant extensions of time of
payment or performance of any Lender Obligations, (iii) make compromises and
settlements with the Obligors and other Persons regarding any Lender
Obligations, (iv) increase, expand and/or modify any Lender Obligations without
the consent of the Trustee or the Noteholders, and without affecting this
Agreement and its rights hereunder, (v) amending any present or future agreement
with any Debtor provided, in each case, that in any event the aggregate
principal amount of the loans and letters of credit constituting Lender
Obligations (exclusive of any interest, fees, costs, expenses or obligations
owed pursuant to any interest rate hedging arrangement) shall not exceed the
Lender Priority Amount.  No action that
the Administrative Agent or the Lenders may take, or refrain from taking, with
respect to the Lender Obligations or any Collateral therefor or any agreements
in connection therewith, shall affect this Agreement or the Administrative
Agent’s or the Lenders’ rights hereunder.


 


16.  Discontinuation of
Credit.  If, at any time hereafter,
the Lenders shall, in the Lenders’ sole and absolute judgment, determine to
discontinue the extension of credit to Borrower, the Lenders may do so if
permitted by the terms and provisions of the Credit Agreement.  Such discontinuation notwithstanding, this
Agreement shall continue in full force and effect until the Lender Obligations
shall have been indefeasibly paid in full, in cash, and the Lender Documents
terminate or expire.


 


17.  Statutes of Limitation.  The obligations of any Debtor, the Trustee
and the Noteholders hereunder shall continue irrespective of, and each Debtor
and the Trustee and the Noteholders hereby waive, so far as the law permits,
any existing or future statues of limitation applicable thereto or applicable
to the enforcement of indebtedness and liability of any Debtor, and any
Collateral therefore.


 


18.  Impairment of Lender
Obligations or Lien.  No court or
other action which has the effect of voiding, impairing, equitably
subordinating or otherwise adversely affecting the Lender Obligations or the
Liens securing the Lender Obligations, whether in connection with an Insolvency
Proceeding with respect to any Debtor or otherwise, shall affect the
Administrative Agent’s or the Lenders’ rights hereunder or any of the Trustees
or the Noteholders’ waivers, covenants or obligations hereunder, except as set
forth herein with respect to the willful misconduct of Administrative Agent or
any Lender.


 


16

















 


19.  Breach of Duty or
Obligation to the Trustee or the Noteholders.  No breach by the Administrative Agent or the Lenders of any duty
or obligation owed to the Trustee or the Noteholders, whether under this
Agreement or otherwise, nor any determination that the Administrative Agent or
the Lenders have any liability to the Trustee or the Noteholders, whether under
this Agreement or otherwise, shall affect the Administrative Agent’s or the
Lenders’ rights hereunder or any of the Trustee’s or the Noteholders’ waivers,
covenants or obligations hereunder.


 


20.  Waiver of Jury Trial.  THE TRUSTEE AND THE NOTEHOLDERS, THE
DEBTORS, AND THE ADMINISTRATIVE AGENT, ON BEHALF OF ITSELF AND THE LENDERS,
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.  IF NECESSARY, EACH PARTY WILL UPON DEMAND
EXECUTE AND DELIVER TO ANY OTHER PARTY ALL SUCH INSTRUMENTS AND DOCUMENTS AS
MAY BE REQUIRED (OR REQUESTED BY SUCH OTHER PARTY) IN ORDER TO FILE PAPERS WITH
ANY COURT OF COMPETENT JURISDICTION SO AS TO EFFECTIVELY WAIVE, OR ACKNOWLEDGE
ITS WAIVER OF, ALL SUCH RIGHTS.


 


21.  Agreement by Debtors.  Each Debtor agrees that it will not, and it
will not permit any affiliate or subsidiary to, take any action in
contravention of the provisions of this Agreement.


 


22.  Miscellaneous Provisions.


 


(a)  Binding Effect;
Authorization.  This Agreement shall
be binding on Debtors, the Administrative Agent, the Lenders, the Trustee and
the Noteholders, and deemed effective, when executed by the Borrower, the
Administrative Agent and the Trustee. 
The Trustee is authorized under the Indenture to execute and deliver
this Agreement for and on behalf of the Noteholders.  The Administrative Agent is authorized to execute and deliver
this Agreement for and on behalf of the Lenders.  The Borrower is authorized to execute and deliver this Agreement
for and on behalf of all present and future Debtors, who by becoming directly
or contingently liable for the Lender Obligations shall be deemed to have
acknowledged and agreed to be bound by the terms of this Agreement.


 


(b)  Parties Intended to be
Benefited.  All of the
understandings, covenants and agreements contained herein are solely for the
benefit of the Administrative Agent, the Lenders, the Trustee and the
Noteholders and there are no other Persons (including Debtors) which are
intended to be benefited in any way by this Agreement.


 


(c)  No Limitation Intended.  Nothing contained in this Agreement is
intended to affect or limit, in any way, the rights that each of the parties
hereto has insofar as the rights of such party and third parties are involved.  The Administrative Agent, on behalf of
itself and the Lenders, and the Trustee, on behalf of itself and the
Noteholders, hereto specifically reserve all of their respective rights against
the Debtors and other Persons.


 


(d)  Notices.  All notices, demands and other communication
which a party may desire, or may be required, to give to another shall be in
writing shall be delivered personally


 


17

















 


against receipt, or sent by
recognized overnight courier service, or mailed by registered or certified
mail, return receipt requested, postage prepaid, or sent by telecopy, and shall
be addressed to the party to be notified as follows:


 


	
   

  	
  Lenders:

  	
  Bank of America, N.A.,

  
	
   

  	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
  555 South Flower Street

  
	
   

  	
   

  	
  Los Angeles, California 90071

  
	
   

  	
   

  	
  Attn:  Janice Hammond

  
	
   

  	
   

  	
  Telephone: (213) 345-1210

  
	
   

  	
   

  	
  Telecopier: (213) 345-1213

  
	
   

  	
   

  	
   

  
	
   

  	
  Noteholders:

  	
  U.S. Bank National Association

  
	
   

  	
   

  	
  180 East 5th Street

  
	
   

  	
   

  	
  St. Paul, Minnesota 55101

  
	
   

  	
   

  	
  Attn:  Corporate Trust
  Department

  
	
   

  	
   

  	
  Telephone: (612) 244-0721

  
	
   

  	
   

  	
  Telecopier: (612) 244-0711

  
	
   

  	
   

  	
   

  
	
   

  	
  Any Debtor:

  	
  c/o Hard Rock Hotel, Inc.

  
	
   

  	
   

  	
  4455 Paradise Road

  
	
   

  	
   

  	
  Las Vegas, Nevada 89109

  
	
   

  	
   

  	
  Attn:  James Bowen

  
	
   

  	
   

  	
  Telephone: (702) 693-5031

  
	
   

  	
   

  	
  Telecopier: (702) 893-9054

  



 


Any such notice, demand, or communication shall be deemed given when
received if personally delivered or sent by overnight courier, or when
deposited in the United States mails, postage prepaid, if sent by registered or
certified mail, or when answerback received, if sent by telecopier.  The address for a party may be changed by
notice given in accordance with this subsection.  All notices or other items required hereby to be delivered to any
Lender shall be delivered to the Administrative Agent.  All notices or other items required hereby
to be delivered to any Noteholder shall be delivered to the Trustee.


 


(e)  Choice of Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada without reference
to the choice of law or conflicts of laws provisions thereof.


 


(f)  Effectiveness and
Condition Precedent.  The
subordinations, agreements and priorities set forth hereinabove shall remain in
full force and effect regardless of whether any party hereto in the future
seeks to rescind, amend, terminate or reform, by litigation or otherwise, its
respective agreements with any Debtor.


 


(g)  Successors and Assigns.  This Agreement shall be binding upon, and
shall inure to the benefit of, the participants, transferees, successors, and
permitted assigns of the parties hereto; provided, however, that
neither the Trustee nor the Noteholders shall transfer or assign any of their
rights or obligations hereunder, or transfer or assign all or any part of their


 


18

















 


interest in the Liens securing
the Noteholder Obligations to any person or entity, except in connection with
the transfer of the Notes, without the prior written consent of the
Administrative Agent (on behalf of the Lenders), any assignment being made in
violation hereof being void  ab  initio.  The Trustee, on behalf of itself and the
Noteholders, further agrees that if Debtors are in the process of refinancing
all or any portion of the Lender Obligations with new lenders (the “New Creditors”)
providing credit conforming to the definition of “Lender Obligations”, and if
Administrative Agent makes a request of the Trustee, the Trustee shall, on
behalf of itself and the Noteholders, promptly confirm in writing that the
rights of the Administrative Agent and the Lenders under this Agreement shall
inure to the specific benefit of such New Creditors (subject to a written
assumption by the New Creditors of the obligations of the Administrative Agent
and the Lenders hereunder).


 


(h)  Headings.  Section headings used in this Agreement have
been set forth herein for convenience of reference only.  Unless the contrary is compelled by the
context, everything contained in each section hereof applies equally to this
entire Agreement.


 


(i)  Severability.  Wherever possible, each provision of this
Agreement shall be interpreted in such 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 to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.


 


(j)  Waivers.  No failure on the part of the Administrative
Agent or the Lenders to exercise, no delay in exercising and no course of
dealing with respect to, 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.


 


(k)  Attorneys’ Fees.  If it becomes necessary for Administrative
Agent, the Lenders, the Noteholders or Trustee to commence any proceedings or
actions to enforce the provisions of this Agreement, the prevailing party shall
be entitled to recover from the non-prevailing party’s reasonable costs and
expenses in prosecuting such proceedings and actions, including reasonable
attorneys’ fees, the usual and customary and lawfully recoverable proceeding
costs, and all the expenses in connection therewith.


 


(l)  Entire Agreement;
Conflict with Noteholder Documents; Modifications.  This Agreement contains all of the terms and
conditions agreed upon by the parties relating to its subject matter and
supersedes all prior and contemporaneous agreements, negotiations,
correspondence, understandings and communications of the parties, whether oral
or written, respecting that subject matter. 
No modification, rescission, waiver, release, or amendment of any provision
of this Agreement shall be made, except by a written agreement signed by the
Administrative Agent (on behalf of the Lenders), and the Trustee, in its
capacity as trustee under the Indenture.


 


(m)  Counterparts.  This Agreement may be signed in any number
of counterparts, each of which will constitute an original, and all of which,
taken together, shall constitute but one and the same agreement with the same
effect as if the signatures thereon were upon the same instrument.


 


19

















 


(n)  Trustee Protected.  Nothing contained in this Agreement shall be
construed to impose any liability on the Trustee for any action or omission
independently taken or made by any Noteholder, regardless of whether such
action or omission violates or contravenes any provision hereof.  The Trustee shall be entitled to all of the
rights provided in the Indenture, including Sections 7.2 and 7.7 thereof, in
carrying out its duties hereunder.


 


(o)  Revival.  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 Lender Obligations is rescinded or must otherwise be returned by the
Administrative Agent or any Lender in connection with any Insolvency Proceeding
or otherwise, all as though such payment had not been made.


 


[THIS SPACE INTENTIONALLY LEFT BLANK – 

SIGNATURE PAGES TO FOLLOW]


 


20

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first set forth above.


 


“Administrative Agent”


 


	
  BANK OF AMERICA, N.A.,

  as Administrative Agent for the Lenders

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


S-1

















 


“Trustee”


 


	
  U.S. BANK NATIONAL ASSOCIATION,

  as Trustee for and on behalf of the Noteholders

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


2

















 


“Borrower”


 


	
  HARD ROCK HOTEL, INC.,

  a Nevada corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


3