AMENDED AND RESTATED INTERCREDITOR AGREEMENT
dated as of
July 21, 2022
among
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, as Term Loan Agent, as Revolving Credit Agent, and as Collateral Agent,
THE LENDERS FROM TIME TO TIME PARTY TO THE TERM LOAN CREDIT AGREEMENT,
THE LENDERS FROM TIME TO TIME PARTY TO THE REVOLVING CREDIT AGREEMENT,
and acknowledged and agreed by
VERIMARK HOSPITALITY GROUP INC., as Borrower,
and the
GUARANTORS party hereto
TABLE OF CONTENTS
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This AMENDED AND RESTATED INTERCREDITOR AGREEMENT (this "Agreement"), dated as of July 21, 2022, is entered into among CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States, in its capacity as administrative agent under the Term Loan Credit Agreement (as defined below) (in such capacity, the "Term Loan Agent"), in its capacity as administrative agent under the Revolving Credit Agreement (as defined below) (in such capacity, the "Revolving Credit Agent"), and in its capacity as collateral agent for the benefit of the Secured Parties (as defined below) (in such capacity, the "Collateral Agent"), THE LENDERS FROM TIME TO TIME PARTY TO THE TERM LOAN CREDIT AGREEMENT (the "Term Loan Lenders"), and THE LENDERS FROM TIME TO TIME PARTY TO THE REVOLVING CREDIT AGREEMENT (the "Revolving Credit Lenders"), and is acknowledged and agreed to by VERIMARK HOSPITALITY GROUP INC., a corporation organized under the laws of the State of Delaware (the "Borrower"), and each of the GUARANTORS party hereto (each, a "Guarantor" and, collectively, the "Guarantors").
This Agreement amends and restates in its entirety that certain Intercreditor Agreement dated as of February 14, 2020 (the "Original Intercreditor Agreement"), previously entered into in connection with the prior term loan B credit facility among Greystone Federal Credit Corp., as prior term loan agent, and Crescent Harbor Bank, National Association, as revolving credit agent, which prior term loan B credit facility has been repaid in full, discharged, and terminated as of the date hereof. Upon the effectiveness of this Agreement, the Original Intercreditor Agreement shall be of no further force or effect and shall be deemed superseded and replaced in all respects by this Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors party thereto, Crescent Harbor Bank, National Association, as Administrative Agent and Collateral Agent, and the Lenders party thereto have entered into that certain Credit Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Term Loan Credit Agreement"), providing for a senior secured term loan B facility in an aggregate principal amount of Seven Hundred Million Dollars ($700,000,000) (the "Term Loan Facility");
WHEREAS, the Borrower, the Guarantors party thereto, Crescent Harbor Bank, National Association, as Administrative Agent and Collateral Agent, and the revolving lenders party thereto are parties to that certain Credit Agreement dated as of February 14, 2020 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Revolving Credit Agreement"), providing for a senior secured revolving credit facility in an aggregate principal amount of Four Hundred Million Dollars ($400,000,000) (the "Revolving Credit Facility" and, together with the Term Loan Facility, the "Credit Facilities");
WHEREAS, the obligations of the Borrower and the Guarantors under the Term Loan Facility and the Revolving Credit Facility are secured by first-priority liens on substantially all assets of the Borrower and the Guarantors, and such liens are intended to be held on a pari passu basis as between the Term Loan Secured Parties and the Revolving Credit Secured Parties;
WHEREAS, Crescent Harbor Bank, National Association serves as Administrative Agent and Collateral Agent under both the Term Loan Credit Agreement and the Revolving Credit Agreement, and in its capacity as Collateral Agent holds all liens on the Shared Collateral (as defined herein) for the ratable benefit of both sets of Secured Parties;
WHEREAS, the parties hereto desire to set forth the relative rights and priorities of the Term Loan Secured Parties and the Revolving Credit Secured Parties with respect to the Shared Collateral, including the manner in which Enforcement Actions shall be directed and the application of proceeds of Shared Collateral; and
WHEREAS, this Agreement amends and restates in its entirety the Original Intercreditor Agreement dated as of February 14, 2020, previously entered into in connection with the prior term loan B facility among Greystone Federal Credit Corp. as prior term loan agent and Crescent Harbor Bank, N.A. as revolving credit agent, which prior term loan B facility has been repaid in full and discharged as of the date hereof, and the parties desire to enter into this Agreement to reflect the new Term Loan Facility and to update the intercreditor arrangements in connection therewith.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — DEFINITIONS AND INTERPRETATION
Section 1.01 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
"Adjusted Term SOFR" means the rate per annum determined in accordance with the Term Loan Credit Agreement, being the Term SOFR Rate plus a credit spread adjustment of 0.10% for one-month interest periods, 0.15% for three-month interest periods, and 0.25% for six-month interest periods, subject to a floor of 0.50% per annum.
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as amended from time to time.
"Borrower" means Verimark Hospitality Group Inc., a corporation duly organized and validly existing under the laws of the State of Delaware, with its principal executive offices located at 8200 West Palmetto Park Road, Suite 1500, Boca Raton, Florida 33433; employer identification number (EIN): 82-3741956; Delaware Secretary of State File Number: 7291843.
"Collateral Agent" means Crescent Harbor Bank, National Association, having its office at 600 Lexington Avenue, 34th Floor, New York, New York 10022, acting in its capacity as collateral agent for both the Term Loan Secured Parties and the Revolving Credit Secured Parties under this Agreement and the Collateral Documents, and any successor collateral agent appointed in accordance with the provisions of Article VII hereof.
"Collateral Documents" means, collectively, (a) the Pledge and Security Agreement dated as of July 21, 2022 among the Borrower, the Guarantors, and the Collateral Agent, (b) the Mortgages, Deeds of Trust, Assignments of Leases and Rents, and Security Agreements (or comparable instruments) delivered by the applicable Grantors with respect to each of the Mortgaged Properties, (c) the intellectual Property Security Agreements filed with the United States Patent and Trademark Office and the United States Copyright Office, (d) the Perfection Certificate dated as of July 21, 2022 delivered by the Borrower and the Guarantors, (e) each UCC-1 Financing Statement filed in connection with the Credit Facilities, and (f) any other agreement, instrument, or document executed and delivered pursuant to any Credit Agreement that grants a security interest or lien on any of the Shared Collateral in favor of the Collateral Agent, in each case as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Credit Agreements" means, collectively, the Term Loan Credit Agreement and the Revolving Credit Agreement.
"Credit Facilities" has the meaning set forth in the recitals to this Agreement.
"DIP Financing" means any debtor-in-possession financing obtained by the Borrower or any Guarantor in connection with an Insolvency Proceeding pursuant to Section 364 of the Bankruptcy Code or any similar provision of applicable law, whether secured or unsecured and whether priming, pari passu, or junior in lien priority to existing liens on the Shared Collateral.
"Discharge of Revolving Credit Obligations" means the occurrence of all of the following: (a) the payment in full in cash of all principal, interest, fees, and other amounts constituting Revolving Credit Obligations (other than contingent indemnification obligations and expense reimbursement obligations not yet due and payable), (b) the termination or expiration of all commitments to make extensions of credit under the Revolving Credit Agreement, and (c) the cash collateralization (on terms reasonably satisfactory to the issuing bank) or backstop of all outstanding letters of credit issued under the Revolving Credit Facility, or the delivery of standby letters of credit from an issuer reasonably acceptable to the applicable issuing bank as a replacement for such outstanding letters of credit.
"Discharge of Term Loan Obligations" means the payment in full in cash of all principal, interest, fees, and other amounts constituting Term Loan Obligations (other than contingent indemnification obligations and expense reimbursement obligations not yet due and payable) and the termination of all commitments under the Term Loan Credit Agreement.
"Enforcement Action" means any exercise of remedies with respect to the Shared Collateral, including, without limitation, (a) any foreclosure upon, sale of, collection of, or other realization upon any Shared Collateral, whether judicial or non-judicial, (b) any disposition of Shared Collateral pursuant to Article 9 of the Uniform Commercial Code, (c) any judicial or non-judicial foreclosure on any Mortgaged Property pursuant to applicable state law, (d) the exercise of any right of setoff, banker's lien, or recoupment against any deposit account or other property constituting Shared Collateral, (e) the exercise of any right to collect or receive any amounts owing under any account, chattel paper, instrument, or other right to payment constituting Shared Collateral, (f) the taking of any action to enforce any judgment or other order obtained in connection with the exercise of remedies against any Shared Collateral, and (g) the notification of any account debtor or obligor on any instrument or chattel paper constituting Shared Collateral to make payment directly to the Collateral Agent or any Secured Party.
"Grantors" means, collectively, the Borrower and the Guarantors, and "Grantor" means any one of them.
"Guarantors" means, collectively, (a) Verimark Resort Properties LLC, a limited liability company organized under the laws of the State of Delaware, (b) VHG Management Services Inc., a corporation organized under the laws of the State of Delaware, (c) Verimark Convention Holdings LLC, a limited liability company organized under the laws of the State of Delaware, (d) Palmetto Beachfront Hotels LLC, a limited liability company organized under the laws of the State of Florida, and (e) Cascadia Hospitality Corp., a corporation organized under the laws of the State of Delaware, and any additional subsidiary of the Borrower that hereafter becomes a guarantor under either Credit Agreement and executes a joinder to this Agreement in accordance with Section 5.04 hereof, and "Guarantor" means any one of them.
"Insolvency Proceeding" means any case, proceeding, or other action under the Bankruptcy Code or any similar federal, state, or foreign law relating to bankruptcy, insolvency, reorganization, receivership, assignment for the benefit of creditors, or similar relief, including any liquidation, conservatorship, or other similar proceeding.
"IP Security Agreements" means, collectively, the Trademark Security Agreement, the Patent Security Agreement, and the Copyright Security Agreement, each dated as of July 21, 2022, entered into by the applicable Grantors in favor of the Collateral Agent, filed with the United States Patent and Trademark Office and the United States Copyright Office, as applicable.
"Majority Directing Party" means, at any time of determination, those Secured Parties holding more than fifty percent (50%) in aggregate principal amount of the sum of (a) all outstanding Term Loan Obligations and (b) all outstanding Revolving Credit Obligations (in each case, including funded principal amounts and the face amount of outstanding letters of credit, but excluding undrawn revolving commitments), in each case as of the date of such determination.
"Mortgaged Properties" means the forty-two (42) hotel properties and related improvements owned by Verimark Resort Properties LLC, Palmetto Beachfront Hotels LLC, and other Guarantors, which properties are encumbered by Mortgages, Deeds of Trust, Assignments of Leases and Rents, and Security Agreements (or comparable instruments under applicable state law) in favor of the Collateral Agent, located across twelve (12) states as follows: Florida (12 properties), New York (6 properties), California (5 properties), Texas (4 properties), Georgia (3 properties), Colorado (3 properties), Arizona (2 properties), Illinois (2 properties), Washington (2 properties), Oregon (1 property), Nevada (1 property), and Virginia (1 property), with an aggregate appraised value (as determined by independent appraisals obtained in connection with the closing of the Term Loan Facility) of approximately Two Billion One Hundred Eighty Million Dollars ($2,180,000,000), as more particularly described in Exhibit B attached hereto.
"Original Intercreditor Agreement" has the meaning set forth in the preamble to this Agreement.
"Pari Passu Liens" means the liens on the Shared Collateral securing the Revolving Credit Obligations and the Term Loan Obligations, which liens are of equal priority and are neither senior nor junior to one another, as more particularly described in Section 2.01 hereof.
"Perfection Certificate" means the Perfection Certificate dated as of July 21, 2022, delivered by the Borrower and the Guarantors to the Collateral Agent in connection with the closing of the Credit Facilities.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, governmental authority, or any other entity.
"Pledge and Security Agreement" means the Pledge and Security Agreement dated as of July 21, 2022, among the Borrower, the Guarantors, and the Collateral Agent, as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Revolving Credit Agent" means Crescent Harbor Bank, National Association, in its capacity as administrative agent under the Revolving Credit Agreement, and any successor administrative agent appointed pursuant to the terms of the Revolving Credit Agreement.
"Revolving Credit Agreement" means that certain Credit Agreement dated as of February 14, 2020, among the Borrower, the Guarantors party thereto, Crescent Harbor Bank, National Association, as Administrative Agent and Collateral Agent, and the revolving lenders party thereto, providing for a senior secured revolving credit facility in an aggregate principal amount of Four Hundred Million Dollars ($400,000,000), as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Revolving Credit Obligations" means all obligations (including obligations in respect of principal, interest, premiums, fees, indemnifications, reimbursements, expenses, and other amounts) of the Borrower and the Guarantors arising under or in connection with the Revolving Credit Agreement and the loan documents related thereto, in each case whether direct or indirect, absolute or contingent, due or to become due, and whether now existing or hereafter arising.
"Revolving Credit Secured Parties" means, collectively, the Revolving Credit Agent and each of the Revolving Credit Lenders, and their respective successors, transferees, and assigns.
"Secured Parties" means, collectively, the Term Loan Secured Parties and the Revolving Credit Secured Parties.
"Shared Collateral" means all assets and property of the Borrower and the Guarantors that are at any time subject to liens securing both the Term Loan Obligations and the Revolving Credit Obligations pursuant to the Collateral Documents, including, without limitation: (i) fee simple and leasehold interests in the forty-two (42) Mortgaged Properties; (ii) one hundred percent (100%) of the issued and outstanding equity interests in each direct domestic subsidiary of the Borrower and each Guarantor, including Verimark Resort Properties LLC, VHG Management Services Inc., Verimark Convention Holdings LLC, Palmetto Beachfront Hotels LLC, and Cascadia Hospitality Corp.; (iii) sixty-five percent (65%) of the issued and outstanding equity interests in any first-tier foreign subsidiaries of the Borrower or any Guarantor; (iv) all personal property of the Borrower and each Guarantor, including all accounts, inventory, equipment, intellectual property, general intangibles, deposit accounts, securities accounts, investment property, chattel paper, instruments, letter-of-credit rights, commercial tort claims (to the extent identified), and supporting obligations; and (v) all proceeds and products of any of the foregoing, in each case as more particularly described in Exhibit B attached hereto and as set forth in the Collateral Documents.
"Standstill Period" has the meaning set forth in Section 3.03 hereof.
"Term Loan Agent" means Crescent Harbor Bank, National Association, in its capacity as administrative agent under the Term Loan Credit Agreement, and any successor administrative agent appointed pursuant to the terms of the Term Loan Credit Agreement.
"Term Loan Credit Agreement" means that certain Credit Agreement dated as of July 21, 2022, among the Borrower, the Guarantors party thereto, Crescent Harbor Bank, National Association, as Administrative Agent and Collateral Agent, and the Term Loan Lenders party thereto, providing for a senior secured term loan B facility in an aggregate principal amount of Seven Hundred Million Dollars ($700,000,000) (CUSIP: 92347LAB8; Crescent Harbor internal Loan Number: CHB-LF-2022-07814), as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Term Loan Obligations" means all obligations (including obligations in respect of principal, interest, premiums, fees, indemnifications, reimbursements, expenses, and other amounts) of the Borrower and the Guarantors arising under or in connection with the Term Loan Credit Agreement and the loan documents related thereto, in each case whether direct or indirect, absolute or contingent, due or to become due, and whether now existing or hereafter arising.
"Term Loan Secured Parties" means, collectively, the Term Loan Agent and each of the Term Loan Lenders, and their respective successors, transferees, and assigns. As of the date hereof, the Term Loan Lenders and their respective commitments under the Term Loan Facility are as follows: Crescent Harbor Bank, N.A. ($50,000,000), Ridgeline Capital Partners, LP ($125,000,000), Beacon Atlantic Credit Fund III ($100,000,000), Tidewater Institutional Investors, Inc. ($75,000,000), Ironbridge Loan Management LLC ($100,000,000), Northway Savings Bank ($75,000,000), Copperleaf Asset Management, LP ($100,000,000), and Harborview Mutual Life Insurance Company ($75,000,000).
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York or, when the laws of any other jurisdiction govern the perfection or priority of any security interest in any Shared Collateral, the Uniform Commercial Code as in effect in such other jurisdiction.
"Waterfall" has the meaning set forth in Section 4.01 hereof.
Section 1.02 — Rules of Interpretation
Unless the context of this Agreement otherwise requires: (a) words importing the singular include the plural and vice versa; (b) references to "including" (and similar expressions) shall be construed as illustrative and shall not limit the generality of the words preceding or following such term (and shall be deemed to be followed by the phrase "without limitation"); (c) the words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular Article, Section, or provision hereof; (d) references to any Article, Section, Exhibit, or Schedule are references to such Article, Section, Exhibit, or Schedule of or to this Agreement unless otherwise specified; (e) references to any Person include such Person's successors and permitted assigns; (f) references to any agreement or instrument include all amendments, restatements, supplements, and other modifications thereto; (g) references to any law include all statutory and regulatory provisions consolidating, amending, replacing, or interpreting such law; (h) the headings, captions, and table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) references to "days" shall mean calendar days unless "Business Days" is expressly specified; and (j) all references to time shall mean New York City time unless otherwise expressly provided. Capitalized terms used but not defined in this Agreement that are defined in the UCC shall have the respective meanings set forth in the UCC.
Section 1.03 — Revolving Credit Agreement and Term Loan Credit Agreement
To the extent any capitalized term used but not defined in this Agreement is defined in both the Term Loan Credit Agreement and the Revolving Credit Agreement, and such term is defined differently in such agreements, the meaning of such term as used in this Agreement shall be determined by reference to the Term Loan Credit Agreement; provided that for purposes of provisions of this Agreement relating solely to the Revolving Credit Obligations, the Revolving Credit Secured Parties, or the Revolving Credit Facility, the meaning of such term shall be determined by reference to the Revolving Credit Agreement. In the event of any conflict between a defined term as used in this Agreement and the definition of such term in either Credit Agreement, the definition set forth in this Agreement shall control for all purposes of this Agreement.
ARTICLE II — LIEN PRIORITY AND PARI PASSU TREATMENT
Section 2.01 — Pari Passu Liens
(a) The parties hereto hereby agree and acknowledge that the liens on the Shared Collateral securing the Term Loan Obligations and the liens on the Shared Collateral securing the Revolving Credit Obligations are pari passu in right and priority with one another. Neither the Term Loan Secured Parties nor the Revolving Credit Secured Parties shall have any priority over the other with respect to the Shared Collateral. The pari passu treatment established by this Section 2.01 shall be effective regardless of the date, time, order, method, or manner of grant, attachment, or perfection of any lien on the Shared Collateral in favor of either set of Secured Parties.
(b) Without limiting the generality of the foregoing, the date, time, method of perfection, or order of filing of any UCC financing statement, mortgage, deed of trust, intellectual property filing, or other document or instrument evidencing or perfecting any lien on the Shared Collateral shall not alter the pari passu treatment established by this Section 2.01. The parties hereto expressly acknowledge that certain UCC financing statements were filed and certain mortgages were recorded in connection with the Revolving Credit Agreement prior to the date hereof, and certain UCC financing statements and mortgages are being filed and recorded in connection with the Term Loan Credit Agreement on or about the date hereof, and that such differences in timing shall have no effect on the pari passu priority of the respective liens.
(c) Regardless of whether any liens securing either the Term Loan Obligations or the Revolving Credit Obligations are avoided, invalidated, set aside, or subordinated by any court of competent jurisdiction or by operation of law, the pari passu treatment established by this Section 2.01 shall not be altered or affected thereby, except as may be required by the application of proceeds provisions set forth in Article IV hereof.
Section 2.02 — Prohibition on Contesting Liens
(a) Each party hereto agrees that it will not (and will not direct, instruct, or authorize any other Person to) contest, challenge, or raise any objection to the validity, perfection, priority, or enforceability of any lien granted to the other party's Secured Parties on any of the Shared Collateral, whether in any Insolvency Proceeding, in any judicial or administrative proceeding, or otherwise.
(b) No party hereto shall seek to have any court or governmental authority declare any lien on the Shared Collateral in favor of any Secured Party invalid, unperfected, or not of pari passu priority with the liens in favor of the other Secured Parties, whether by way of any claim, defense, counterclaim, cross-claim, third-party claim, or otherwise.
(c) The agreements set forth in this Section 2.02 shall survive the termination of this Agreement with respect to any lien that was in existence at the time of such termination, to the extent any proceeding challenging such lien is pending or threatened as of the date of termination.
Section 2.03 — No New Liens
(a) Neither the Term Loan Agent nor the Revolving Credit Agent shall acquire, accept, or hold any lien on any asset or property of the Borrower or any Guarantor to secure the Term Loan Obligations or the Revolving Credit Obligations, as applicable, unless such asset or property is also subject to a pari passu lien for the benefit of the other set of Secured Parties in accordance with this Agreement and the Collateral Documents.
(b) In the event that either the Term Loan Agent or the Revolving Credit Agent obtains a lien on any asset or property of the Borrower or any Guarantor that does not also constitute Shared Collateral encumbered by a pari passu lien for the benefit of the other set of Secured Parties, such Agent shall promptly notify the other Agent and shall take all actions necessary and reasonably requested by the other Agent to cause such asset or property to become Shared Collateral subject to pari passu liens for the benefit of both sets of Secured Parties.
(c) Notwithstanding the foregoing, the provisions of this Section 2.03 shall not prohibit (i) the grant of replacement or refinancing liens on the same assets in connection with any refinancing permitted under Article VIII hereof, or (ii) the grant of liens on assets that are permitted to be subject to liens securing only one set of obligations under the express terms of both the Term Loan Credit Agreement and the Revolving Credit Agreement.
Section 2.04 — Perfection of Liens
(a) Crescent Harbor Bank, National Association, in its capacity as Collateral Agent, shall hold all Shared Collateral and all security interests and liens thereon for the ratable benefit of both the Term Loan Secured Parties and the Revolving Credit Secured Parties. The Collateral Agent shall maintain in its possession or under its control all original certificates representing pledged equity interests, all original promissory notes, and all other instruments and documents of title constituting Shared Collateral.
(b) The Collateral Agent shall be responsible for maintaining and, as necessary, continuing all UCC financing statements filed in connection with the security interests in the Shared Collateral. As of the date hereof, UCC-1 financing statements have been filed (or are being filed simultaneously herewith) with (i) the Delaware Secretary of State with respect to Verimark Hospitality Group Inc., Verimark Resort Properties LLC, VHG Management Services Inc., Verimark Convention Holdings LLC, and Cascadia Hospitality Corp., as debtors, and (ii) the Florida Secured Transaction Registry with respect to Palmetto Beachfront Hotels LLC, as debtor, in each case naming Crescent Harbor Bank, National Association, as Collateral Agent, as secured party.
(c) The Collateral Agent shall hold all mortgages, deeds of trust, assignments of leases and rents, and related documents recorded across the twelve (12) states in which the Mortgaged Properties are located for the ratable benefit of both sets of Secured Parties. The Collateral Agent shall hold all IP Security Agreements filed with the United States Patent and Trademark Office and the United States Copyright Office for such ratable benefit.
(d) Each party hereto acknowledges and agrees that the Collateral Agent acts in a unified capacity for the benefit of both sets of Secured Parties, and that the appointment of Crescent Harbor Bank, National Association as Collateral Agent under both the Term Loan Credit Agreement and the Revolving Credit Agreement is a material condition of this Agreement. The Collateral Agent's obligations to hold Shared Collateral for the ratable benefit of both sets of Secured Parties shall not be altered or diminished by the Discharge of one set of obligations (but not the other), except as set forth in Section 5.02 hereof.
ARTICLE III — ACTIONS WITH RESPECT TO SHARED COLLATERAL
Section 3.01 — Enforcement Actions; Standstill
(a) Initiation of Enforcement Actions. No Secured Party shall take any Enforcement Action with respect to any Shared Collateral except through and at the direction of the Collateral Agent. No individual Term Loan Lender or Revolving Credit Lender shall have any independent right to take any Enforcement Action against any Shared Collateral, and any such action shall be taken solely through the Collateral Agent acting in accordance with the terms of this Agreement.
(b) Directing Party. All Enforcement Actions with respect to the Shared Collateral shall be directed by the Majority Directing Party. The Collateral Agent shall commence, continue, or refrain from commencing or continuing any Enforcement Action as directed by the Majority Directing Party, subject to the limitations set forth in this Article III and in Article IV hereof. For the avoidance of doubt, as of the date hereof, the aggregate principal amount of the Term Loan Obligations is Seven Hundred Million Dollars ($700,000,000) and the aggregate principal amount of the Revolving Credit Obligations is zero (no amounts having been drawn under the Revolving Credit Facility as of the date hereof); accordingly, the Term Loan Secured Parties would, as of the date hereof, constitute the Majority Directing Party. The identity of the Majority Directing Party will be determined based on the aggregate outstanding obligations at any given time, and will vary depending upon amounts drawn and outstanding under the Revolving Credit Facility at the applicable date of determination.
(c) Written Instructions. The Collateral Agent shall be entitled to receive written instructions from the Majority Directing Party (which may be communicated through the Term Loan Agent or the Revolving Credit Agent, as the case may be, acting on behalf of the applicable Secured Parties) prior to taking any Enforcement Action. The Collateral Agent shall have no obligation to verify the authority of any Person purporting to deliver instructions on behalf of the Majority Directing Party, provided that such instructions are delivered by an authorized officer of the Term Loan Agent or the Revolving Credit Agent, as applicable.
Section 3.02 — Exercise of Remedies
(a) The Collateral Agent shall exercise remedies with respect to the Shared Collateral as directed by the Majority Directing Party, including (i) the commencement of judicial or non-judicial foreclosure proceedings with respect to any Mortgaged Property, (ii) the conducting of any UCC Article 9 disposition of personal property constituting Shared Collateral, (iii) the exercise of setoff rights against deposit accounts, and (iv) the notification of account debtors and other obligors.
(b) In the event that the Collateral Agent receives conflicting instructions from the Term Loan Agent (acting on behalf of the Term Loan Secured Parties) and the Revolving Credit Agent (acting on behalf of the Revolving Credit Secured Parties) regarding any Enforcement Action, the Collateral Agent shall follow the instructions of the Majority Directing Party. In the event the Collateral Agent is unable to determine the identity of the Majority Directing Party due to a dispute regarding the calculation of outstanding obligations, the Collateral Agent may refrain from taking any Enforcement Action until such dispute is resolved (by agreement of the parties or by a court of competent jurisdiction) without any liability to any Secured Party.
(c) The Collateral Agent shall not be required to take any action that would (i) expose it to personal liability (other than liability arising from its own gross negligence or willful misconduct), (ii) be contrary to applicable law or the terms of this Agreement or any Collateral Document, or (iii) in the reasonable judgment of the Collateral Agent, subject it to the risk of liability without adequate indemnity or security.
Section 3.03 — Standstill Period
(a) If the Secured Parties constituting the minority group (that is, the group of Secured Parties that does not constitute the Majority Directing Party) disagree with the direction given by the Majority Directing Party with respect to any Enforcement Action, such minority group shall not independently initiate, direct, or cause the commencement of any Enforcement Action with respect to any Shared Collateral for a period of one hundred eighty (180) days following the date on which an event of default has occurred and is continuing under the applicable Credit Agreement (the "Standstill Period").
(b) During the Standstill Period, the minority group may communicate its objections and recommendations to the Majority Directing Party and the Collateral Agent in writing, but shall not take any affirmative steps to exercise remedies against the Shared Collateral independently of the Collateral Agent and the Majority Directing Party.
(c) If, upon the expiration of the Standstill Period, no Enforcement Action has been commenced or is being diligently pursued by or at the direction of the Majority Directing Party, the minority group shall have the right to direct the Collateral Agent to commence Enforcement Actions with respect to the Shared Collateral, and the Collateral Agent shall comply with such directions; provided that all proceeds of any such Enforcement Action shall be applied in accordance with the Waterfall set forth in Article IV hereof.
(d) Notwithstanding anything to the contrary in this Section 3.03, the Standstill Period shall not restrict the right of any Secured Party to (i) file proofs of claim in any Insolvency Proceeding, (ii) take any action to preserve or protect (but not to realize upon) the Shared Collateral, including the filing of UCC continuation statements or the taking of actions to prevent the lapse of any lien perfection, or (iii) exercise any right of recoupment.
Section 3.04 — Cooperation; Access
(a) Each Agent and each group of Secured Parties shall cooperate fully with the Collateral Agent in connection with any Enforcement Action, including by providing access to books, records, and other documents in its possession relating to the Shared Collateral.
(b) The Borrower and each Guarantor, by their acknowledgment hereof, agree to provide the Collateral Agent and the Secured Parties with reasonable access to the Mortgaged Properties for purposes of inspection, appraisal, and valuation, upon reasonable prior notice and at reasonable times during normal business hours, in each case consistent with the terms and conditions set forth in the applicable Credit Agreement.
(c) Each Agent shall cooperate with independent appraisers, environmental consultants, and other professionals retained by the Collateral Agent in connection with the evaluation, preservation, or disposition of the Shared Collateral, including the Mortgaged Properties.
Section 3.05 — Insurance and Condemnation Proceeds
(a) All proceeds of property and casualty insurance policies maintained by the Borrower or any Guarantor with respect to any Shared Collateral (including the Mortgaged Properties), to the extent payable to the Collateral Agent as loss payee, mortgagee, or additional insured, shall be applied in accordance with the Waterfall set forth in Article IV hereof, or as otherwise required under the applicable Credit Agreement (including, where applicable, for purposes of restoration of the affected property).
(b) All awards, compensation, and other payments received in connection with any condemnation, eminent domain proceeding, or other governmental taking of any Shared Collateral (including any Mortgaged Property or portion thereof) shall be applied in accordance with the Waterfall set forth in Article IV hereof, or as otherwise required under the applicable Credit Agreement.
(c) The Collateral Agent (as the designated loss payee and additional insured under Verimark Hospitality Group Inc.'s property and casualty insurance program) shall hold all such insurance proceeds and condemnation awards for the ratable benefit of both the Term Loan Secured Parties and the Revolving Credit Secured Parties pending application thereof in accordance with this Agreement.
ARTICLE IV — APPLICATION OF PROCEEDS; WATERFALL
Section 4.01 — Application of Proceeds
All proceeds received by the Collateral Agent from any Enforcement Action, sale, disposition, collection, or other realization upon any Shared Collateral, and all proceeds received from insurance or condemnation events with respect to Shared Collateral (in each case, to the extent not applied to restoration of the affected property in accordance with the applicable Credit Agreement), shall be applied by the Collateral Agent in the following order of priority (the "Waterfall"):
First, to the payment of all costs and expenses (including reasonable and documented attorneys' fees, consultant fees, appraisal costs, and other out-of-pocket expenses) incurred by the Collateral Agent in connection with such Enforcement Action, realization, or collection, including any amounts advanced by the Collateral Agent to preserve, protect, or prepare for disposition any Shared Collateral;
Second, ratably to the payment of (a) all outstanding Revolving Credit Obligations and (b) all outstanding Term Loan Obligations, in each case on a pro rata basis determined in accordance with Section 4.02 hereof, reflecting the pari passu treatment of the liens securing such obligations; provided that, with respect to Revolving Credit Obligations, amounts applied shall first be applied to reduce outstanding revolving loans and then to cash collateralize or backstop outstanding letters of credit; and
Third, after the indefeasible payment in full in cash of all Revolving Credit Obligations and all Term Loan Obligations (including cash collateralization of all outstanding letters of credit), any remaining proceeds shall be paid to the Borrower or as otherwise directed by a court of competent jurisdiction or as required by applicable law.
Section 4.02 — Pro Rata Sharing
(a) The pro rata share of each set of Secured Parties in the application of proceeds pursuant to the Waterfall shall be determined by dividing (x) the aggregate outstanding amount of such Secured Party group's obligations at the time of distribution by (y) the aggregate outstanding amount of all obligations secured by the Shared Collateral at the time of distribution. For purposes of this calculation, the "aggregate outstanding amount" of any set of obligations shall include (i) funded principal amounts, (ii) accrued and unpaid interest, (iii) accrued and unpaid fees, (iv) the face amount of outstanding letters of credit (whether drawn or undrawn), and (v) all other amounts constituting obligations under the applicable Credit Agreement.
(b) By way of illustration and not limitation: if, at the time of distribution, the aggregate outstanding Term Loan Obligations are Seven Hundred Million Dollars ($700,000,000) and the aggregate outstanding drawn Revolving Credit Obligations are Two Hundred Million Dollars ($200,000,000), the pro rata share of the Term Loan Secured Parties would be $700,000,000 / $900,000,000 = 77.78% (approximately), and the pro rata share of the Revolving Credit Secured Parties would be $200,000,000 / $900,000,000 = 22.22% (approximately).
(c) For the avoidance of doubt, undrawn and uncommitted revolving credit commitments shall not be included in the denominator for purposes of calculating pro rata shares under the Waterfall. Only funded obligations and contingent obligations (including the face amount of outstanding letters of credit, whether drawn or undrawn, and reimbursement obligations in respect thereof) shall be counted.
Section 4.03 — Turnover
(a) If any Secured Party (or any Agent acting on behalf of any Secured Party) receives any proceeds of Shared Collateral in excess of its pro rata share as determined in accordance with Section 4.02 hereof, whether through the exercise of setoff rights, banker's lien, counterclaim, cross-claim, or otherwise, such Secured Party (or Agent) shall promptly turn over such excess amount to the Collateral Agent for redistribution in accordance with the Waterfall.
(b) Each Secured Party agrees that, pending such turnover, it shall hold any such excess amount in trust for the benefit of the other Secured Parties, and such amount shall not be commingled with other funds of such Secured Party.
(c) The obligations of each Secured Party under this Section 4.03 shall survive the termination of this Agreement with respect to any excess amounts received prior to such termination.
Section 4.04 — Subrogation
No Secured Party shall be subrogated to the rights of any other Secured Party with respect to the Shared Collateral until the indefeasible Discharge of all obligations owed to such other Secured Party group. Until such time, each Secured Party hereby waives any right of subrogation that it may have against the Borrower or any Guarantor, or with respect to any Shared Collateral, by reason of any payment or distribution made to any other Secured Party in accordance with the Waterfall.
ARTICLE V — RELEASE OF LIENS; AMENDMENT OF COLLATERAL DOCUMENTS
Section 5.01 — Release of Liens
(a) If the Collateral Agent, acting at the direction of the Majority Directing Party or as required under the terms of the applicable Credit Agreement (including in connection with any permitted disposition of assets), releases any lien on any Shared Collateral, such release shall automatically and simultaneously release the liens of both the Term Loan Secured Parties and the Revolving Credit Secured Parties on such Shared Collateral without any further action by any party hereto.
(b) In connection with any permitted disposition of assets under both Credit Agreements (including any disposition of a Mortgaged Property, any sale of equity interests in a subsidiary, or any other asset sale permitted under both the Term Loan Credit Agreement and the Revolving Credit Agreement), the Collateral Agent shall execute and deliver, at the Borrower's expense, lien releases, UCC-3 termination statements or amendments, mortgage discharges or satisfactions, and any other instruments or documents reasonably necessary to evidence the release of liens on such disposed-of assets, in each case upon receipt of a written request from the Borrower (or the applicable Grantor) certifying that such disposition is permitted under the terms of both Credit Agreements.
(c) Upon both the Discharge of all Revolving Credit Obligations and the Discharge of all Term Loan Obligations, all liens on the Shared Collateral shall be automatically released, and the Collateral Agent shall execute and deliver all instruments and documents reasonably requested by the Borrower to evidence such release, including UCC-3 termination statements, mortgage discharges, releases of IP security interests, and any other instruments of release or termination.
Section 5.02 — Release upon Discharge of One Set of Obligations
(a) Upon the Discharge of the Term Loan Obligations (but not the Revolving Credit Obligations), (i) the Revolving Credit Secured Parties shall continue to have the benefit of the liens on the Shared Collateral, (ii) the Collateral Agent shall continue to hold such Shared Collateral for the benefit of the Revolving Credit Secured Parties, (iii) the Term Loan Secured Parties shall have no further rights under this Agreement with respect to the Shared Collateral, and (iv) this Agreement shall terminate with respect to the Term Loan Secured Parties (but shall continue in effect with respect to the Revolving Credit Secured Parties until the Discharge of the Revolving Credit Obligations).
(b) Upon the Discharge of the Revolving Credit Obligations (but not the Term Loan Obligations), (i) the Term Loan Secured Parties shall continue to have the benefit of the liens on the Shared Collateral, (ii) the Collateral Agent shall continue to hold such Shared Collateral for the benefit of the Term Loan Secured Parties, (iii) the Revolving Credit Secured Parties shall have no further rights under this Agreement with respect to the Shared Collateral, and (iv) this Agreement shall terminate with respect to the Revolving Credit Secured Parties (but shall continue in effect with respect to the Term Loan Secured Parties until the Discharge of the Term Loan Obligations).
Section 5.03 — Amendments to Collateral Documents
(a) No amendment, modification, supplement, or waiver of any Collateral Document that would materially and adversely affect the rights of either set of Secured Parties under this Agreement or the Collateral Documents shall be effective without the prior written consent of the requisite lenders under both the Term Loan Credit Agreement and the Revolving Credit Agreement (as determined in accordance with the respective voting provisions of each such Credit Agreement).
(b) Notwithstanding the foregoing, the Collateral Agent may, without the consent of either the Term Loan Agent or the Revolving Credit Agent in its representative capacity or any Secured Party, amend, modify, or supplement any Collateral Document in order to (i) cure any defect, error, or omission therein, (ii) resolve any ambiguity or inconsistency, (iii) add additional collateral for the benefit of both sets of Secured Parties, (iv) reflect the joinder of additional Grantors in accordance with Section 5.04 hereof, or (v) make any other change that is ministerial or administrative in nature and does not materially and adversely affect the rights of any Secured Party.
Section 5.04 — Additional Guarantors and Grantors
(a) If any additional subsidiary of the Borrower is required to become a Guarantor under either Credit Agreement (whether as a result of an acquisition, a formation of a new subsidiary, or otherwise), such subsidiary shall also be required to become a Grantor under the Collateral Documents for the ratable benefit of both sets of Secured Parties and shall execute and deliver to the Collateral Agent (i) a joinder agreement to this Agreement substantially in the form attached hereto as Exhibit A, (ii) a supplement to the Pledge and Security Agreement, (iii) such additional UCC financing statements, mortgages, intellectual property security agreements, and other Collateral Documents as may be reasonably required by the Collateral Agent, and (iv) such legal opinions, corporate resolutions, and other documents as are customarily delivered in connection with the grant of security interests.
(b) The Borrower shall cause any such additional subsidiary to comply with the requirements of this Section 5.04 within the time periods specified in the applicable Credit Agreement for the delivery of guaranty and collateral documents with respect to new subsidiaries.
ARTICLE VI — INSOLVENCY PROCEEDINGS; BANKRUPTCY
Section 6.01 — Applicability
The provisions of this Article VI shall apply at all times during and in connection with any case, proceeding, or other action under the Bankruptcy Code or any similar federal, state, or foreign insolvency, reorganization, receivership, or similar law (each, an "Insolvency Proceeding") with respect to the Borrower or any Guarantor. The provisions of this Article VI are intended to be enforceable to the fullest extent permitted by applicable law, including Section 510(a) of the Bankruptcy Code. Each party hereto acknowledges that the provisions of this Article VI are a material inducement to the other parties to enter into this Agreement.
Section 6.02 — Filing of Claims
Each set of Secured Parties (through their respective Agent) shall have the right to file proofs of claim and participate in any Insolvency Proceeding involving the Borrower or any Guarantor; provided that such participation shall be conducted in a manner consistent with the pari passu treatment and waterfall provisions of this Agreement. Each Agent shall provide reasonable prior notice to the other Agent of any proof of claim it intends to file, to the extent practicable. Nothing in this Agreement shall limit the right of either Agent or any Secured Party to vote on any matter submitted for a vote by creditors in an Insolvency Proceeding, subject to Section 6.08 hereof.
Section 6.03 — DIP Financing
(a) If the Borrower or any Guarantor becomes a debtor-in-possession in an Insolvency Proceeding and seeks authority under Section 364 of the Bankruptcy Code to obtain DIP Financing:
(i) Each party hereto consents in advance to the provision of DIP Financing by the other party's Secured Parties or their affiliates, provided that such DIP Financing is secured by liens on the Shared Collateral on a basis that is consistent with, pari passu with, or senior to the existing liens on the Shared Collateral, in each case subject to the consent of the requisite Secured Parties under both Credit Facilities (or as otherwise approved by the bankruptcy court after notice and a hearing).
(ii) Neither set of Secured Parties shall object to a DIP Financing provided by the other set of Secured Parties (or by a third party acceptable to the applicable Secured Parties) solely on the basis that such DIP Financing primes or is pari passu with its liens on the Shared Collateral; provided that the aggregate amount of liens securing such DIP Financing that are senior to the existing Pari Passu Liens does not exceed an amount equal to the greater of (A) $100,000,000 and (B) the amount approved by the requisite Secured Parties under both Credit Facilities.
(iii) The foregoing consent shall not prohibit either set of Secured Parties from objecting to DIP Financing on grounds other than lien priority, including the terms and conditions, pricing, fees, or other economics of such DIP Financing.
Section 6.04 — Adequate Protection
(a) Each set of Secured Parties shall be entitled to seek adequate protection in an Insolvency Proceeding with respect to its interest in the Shared Collateral, including adequate protection in the form of replacement liens, periodic cash payments, additional or replacement liens, or other relief provided under Section 361 of the Bankruptcy Code.
(b) Any adequate protection payments received by either set of Secured Parties (or any Agent on behalf of such Secured Parties) shall be applied in accordance with the Waterfall set forth in Article IV hereof.
(c) Neither set of Secured Parties shall object to the seeking or receipt of adequate protection by the other set of Secured Parties in any Insolvency Proceeding, provided that the form and amount of adequate protection are consistent with the pari passu treatment and waterfall provisions of this Agreement.
Section 6.05 — Relief from Stay
(a) Neither set of Secured Parties shall seek relief from the automatic stay imposed by Section 362 of the Bankruptcy Code (or any similar stay imposed under any other applicable insolvency law) with respect to any Shared Collateral without the consent of the Majority Directing Party.
(b) Notwithstanding the foregoing, after the expiration of a standstill period analogous to the Standstill Period set forth in Section 3.03 hereof (calculated from the date of the commencement of the applicable Insolvency Proceeding), the minority group of Secured Parties shall have the right to seek relief from the automatic stay with respect to the Shared Collateral if the Majority Directing Party has not taken any action to seek such relief or commenced any Enforcement Action during such period.
Section 6.06 — Post-Petition Interest; Fees
Each party's right to post-petition interest, fees, costs, charges, and expenses (to the extent allowed under Section 506(b) of the Bankruptcy Code or any similar provision of applicable law) shall be treated as part of such party's obligations for purposes of the Waterfall set forth in Article IV hereof. Neither set of Secured Parties shall assert that post-petition interest or fees accruing on the obligations of the other set of Secured Parties should be subordinated in priority to its own claims or should be disallowed by reason of the oversecured or undersecured status of such claims.
Section 6.07 — Avoidance Actions
(a) Proceeds of any avoidance actions brought under Sections 544, 545, 547, 548, 549, 550, and 553 of the Bankruptcy Code (or analogous provisions of applicable state or foreign law), to the extent such proceeds relate to Shared Collateral or are attributable to transfers of Shared Collateral, shall be applied in accordance with the Waterfall set forth in Article IV hereof.
(b) Each party hereto agrees not to assert that it is entitled to a priority claim on avoidance action proceeds over the other party's Secured Parties by reason of any theory of lien priority, equitable subordination, or otherwise, to the extent such proceeds relate to or are attributable to Shared Collateral.
Section 6.08 — Plan of Reorganization
Neither set of Secured Parties shall support, vote in favor of, or consent to any plan of reorganization, plan of liquidation, or similar dispositive plan in any Insolvency Proceeding that is inconsistent with the pari passu treatment and waterfall provisions of this Agreement, unless the other set of Secured Parties (through their respective Agent) has consented to such plan in writing. For the avoidance of doubt, this Section 6.08 shall not restrict the right of any Secured Party to vote to reject any such plan.
ARTICLE VII — THE COLLATERAL AGENT
Section 7.01 — Appointment and Authorization
(a) Each of the Term Loan Secured Parties and the Revolving Credit Secured Parties hereby irrevocably appoints and authorizes Crescent Harbor Bank, National Association to act as Collateral Agent under this Agreement and the Collateral Documents, with such powers and duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the Collateral Documents, together with such powers and duties as are reasonably incidental thereto.
(b) The Collateral Agent shall hold all Shared Collateral, and all security interests, liens, and encumbrances thereon, in trust for the ratable benefit of both the Term Loan Secured Parties and the Revolving Credit Secured Parties, in accordance with the terms and provisions of this Agreement. The Collateral Agent's role is that of a collateral agent and not that of a trustee under any express or implied trust.
(c) Each Secured Party acknowledges and agrees that the rights and remedies of the Secured Parties with respect to the Shared Collateral may be exercised only through the Collateral Agent and in accordance with the terms of this Agreement, and that no individual Secured Party shall have any independent right to exercise any such right or remedy (except as expressly provided in this Agreement).
Section 7.02 — Duties and Responsibilities
(a) The Collateral Agent shall have only such duties and responsibilities as are expressly set forth in this Agreement and the Collateral Documents. The Collateral Agent shall act in accordance with the written directions of the Majority Directing Party in all matters relating to the Shared Collateral, subject to the limitations set forth herein.
(b) The Collateral Agent shall not have any fiduciary duty to any Secured Party, and no implied covenants, functions, responsibilities, duties, obligations, or liabilities shall be read into this Agreement or any Collateral Document or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, the use of the term "agent" herein is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine.
(c) The Collateral Agent may rely upon, and shall be fully protected in acting or refraining from acting in reliance upon, any certificate, notice, direction, request, consent, statement, instrument, document, or other communication that it believes in good faith to be genuine and to have been signed, sent, or made by the appropriate Person or Persons, and upon the advice and statements of legal counsel (including counsel for the Borrower), independent accountants, and other experts selected by the Collateral Agent.
(d) The Collateral Agent shall maintain complete and accurate records of all UCC financing statements (including all continuation statements and amendments), mortgages, deeds of trust, IP security interest filings, and other perfection-related filings and recordings made in connection with the Shared Collateral, and shall make such records available for inspection by the Term Loan Agent and the Revolving Credit Agent upon reasonable request.
Section 7.03 — Exculpation; Limitation of Liability
(a) The Collateral Agent shall not be liable for any action taken or omitted to be taken by it under or in connection with this Agreement or any Collateral Document, except for its own gross negligence, willful misconduct, or bad faith, as determined by a court of competent jurisdiction in a final, non-appealable judgment.
(b) The Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) the validity, genuineness, enforceability, or sufficiency of any Shared Collateral or any Collateral Document, (ii) the financial condition of the Borrower or any Guarantor, (iii) whether the conditions to the making of any loan or the issuance of any letter of credit have been satisfied, (iv) the existence or possible existence of any default or event of default under either Credit Agreement, or (v) the value or condition of any Shared Collateral.
(c) The Collateral Agent shall have no implied duties, obligations, or liabilities under this Agreement or under any Collateral Document. No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
Section 7.04 — Resignation and Removal
(a) The Collateral Agent may resign at any time by giving thirty (30) days' prior written notice to the Term Loan Agent, the Revolving Credit Agent, and the Borrower. Upon the effective date of such resignation, the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, but shall continue to hold any Shared Collateral in its possession pending the appointment of a successor.
(b) A successor Col