INTERCREDITOR AGREEMENT CONSTITUTES THE LEGAL, VALID AND
BINDING OBLIGATION OF THE TERM LOAN LENDERS, ENFORCEABLE AGAINST THE TERM LOAN
LENDERS IN ACCORDANCE WITH ITS TERMS.
(b)
The Revolving Loan Agent represents and warrants to the Term Loan
Lenders that:
(I)
AS OF THE DATE HEREOF, NO DEFAULT OR EVENT OF DEFAULT, OR ACT,
CONDITION OR EVENT WHICH WITH NOTICE OR PASSAGE OF TIME OR BOTH WOULD CONSTITUTE
AN EVENT OF DEFAULT UNDER ANY OF THE REVOLVING LOAN DOCUMENTS EXISTS OR HAS
OCCURRED, EXCEPT FOR THE "EXISTING DEFAULTS" AS SUCH TERM IS DEFINED IN
AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, DATED AS OF
MARCH 11, 2003, BY AND AMONG CONGRESS, AS AGENT FOR ITSELF AND THE FINANCIAL
INSTITUTIONS FROM TIME TO TIME PARTY TO THE REVOLVING LOAN AGREEMENT, THE CIT
GROUP/BUSINESS CREDIT, INC., AS CO-AGENT, THE BORROWERS AND DR LAND HOLDINGS,
LLC, AS GUARANTOR.
14
(II)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS INTERCREDITOR
AGREEMENT BY THE REVOLVING LOAN AGENT IS WITHIN ITS POWERS IN ITS CAPACITY AS
AGENT FOR EACH REVOLVING LOAN LENDER AND HAS BEEN AUTHORIZED BY EACH REVOLVING
LOAN LENDER AS PROVIDED IN, AND IN ACCORDANCE WITH THE REQUIREMENTS OF, THE
REVOLVING LOAN DOCUMENTS, AND DOES NOT CONTRAVENE ANY LAW, ANY PROVISION OF ANY
OF THE REVOLVING LOAN DOCUMENTS OR ANY OTHER AGREEMENT TO WHICH THE REVOLVING
LOAN AGENT IS A PARTY OR BY WHICH IT IS BOUND;
(III)
THE REVOLVING LOAN AGENT HAS BEEN DULY APPOINTED AND CONSTITUTED
AS AGENT TO ACT FOR AND ON BEHALF OF EACH REVOLVING LOAN LENDER AND HAS BEEN
IRREVOCABLY AUTHORIZED TO EXECUTE AND DELIVER THIS INTERCREDITOR AGREEMENT FOR
ITSELF AND ON BEHALF OF EACH REVOLVING LOAN LENDER AND TO PERFORM ALL OF ITS
OBLIGATIONS HEREUNDER, AND TO TAKE SUCH ACTIONS ON BEHALF OF EACH REVOLVING LOAN
LENDER AS MAY BE REQUIRED OF IT UNDER THE TERMS HEREOF, WITHOUT ANY FURTHER
CONSENT OR APPROVAL OF ANY REVOLVING LOAN LENDER AND IS IN SUCH POSITION AS OF
THE DATE HEREOF,
(IV)
THE REVOLVING LOAN LENDERS HAVE NOT BEEN GRANTED, AND DO NOT HAVE,
ANY LIENS UPON THE ASSETS AND PROPERTIES OF ANY BORROWER PURSUANT TO THE
REVOLVING LOAN DOCUMENTS, EXCEPT FOR THE LIENS ON THE COLLATERAL GRANTED TO THE
REVOLVING LOAN AGENT FOR THE BENEFIT OF THE REVOLVING LOAN LENDERS THEREUNDER;
AND
(v)
this Intercreditor Agreement constitutes the legal, valid and
binding obligation of the Revolving Loan Lenders, enforceable against the
Revolving Loan Lenders in accordance with its terms.
3.2
AMENDMENTS.
ANY WAIVER, PERMIT, CONSENT OR APPROVAL BY ANY PARTY
OF OR UNDER ANY PROVISION, CONDITION OR COVENANT TO THIS INTERCREDITOR AGREEMENT
MUST BE IN WRITING AND SHALL BE EFFECTIVE ONLY TO THE EXTENT IT IS SET FORTH IN
WRITING AND AS TO THE SPECIFIC FACTS OR CIRCUMSTANCES COVERED THEREBY.
ANY
AMENDMENT OF THIS INTERCREDITOR AGREEMENT MUST BE IN WRITING AND SIGNED BY EACH
OF THE PARTIES TO BE BOUND THEREBY; PROVIDED, THAT, NOTWITHSTANDING THAT SUCH
AMENDMENT MAY BE SIGNED ONLY BY THE REVOLVING LOAN AGENT OR