EXHIBIT 10.6
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INTERCREDITOR AGREEMENT
among
BANK OF SCOTLAND,
as Lender,
THE BANK OF NEW YORK,
as Collateral Agent,
EMPIRE RESORTS, INC.,
as Borrower,
and certain of its SUBSIDIARIES,
as Guarantors
Dated as January 11, 2005
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INTERCREDITOR AGREEMENT
THIS
INTERCREDITOR
AGREEMENT
dated as of January
11,
2005 (this
"AGREEMENT")
is made by and
among
BANK OF
SCOTLAND,
as agent
to the
Banks
referred
to below
(the
"ORIGINAL
LENDER")
under
and
pursuant
to the Loan
Agreement (as hereinafter defined), THE BANK OF NEW YORK ("BNY"),
solely in its
capacity as collateral
agent under the Indenture Loan Documents (as hereinafter
defined) (in such capacity,
the "COLLATERAL
AGENT"),
Empire Resorts,
Inc., a
Delaware
corporation (the
"BORROWER"),
and those certain
subsidiaries of the
Borrower party hereto (the "GUARANTORS").
RECITALS
A. Borrower, Guarantors,
Collateral Agent, and BNY, in its capacity
as Trustee (in such capacity,
the
"TRUSTEE"),
have entered into an Indenture,
dated as of July 26,
2004 (the
"INDENTURE"),
pursuant
to which the
Borrower
incurred
indebtedness
for certain
notes (such notes,
together with all other
notes
issued
after the date
hereof
and
exchange
notes
issued in
exchange
therefore,
the "NOTES") in an aggregate
principal
amount of $65,000,000.
The
repayment of the
Indenture
Secured
Obligations
(as
hereinafter
defined) is
secured by security
interests
in and liens on the assets and
properties
(the
"COLLATERAL")
described in the Security
Agreement
dated as of the date hereof
(the "INDENTURE SECURITY
AGREEMENT") made by the Borrower and the Guarantors in
favor of the
Collateral
Agent for the
benefit of the
Collateral
Agent,
the
Trustee,
and the Noteholders,
the Pledge Agreement dated as of the date hereof
(the
"INDENTURE
PLEDGE
AGREEMENT"),
made by the Borrower and the
Guarantors
parties
thereto
in
favor
of the
Collateral
Agent
for the
benefit
of the
Collateral
Agent, the Trustee,
and the Noteholders,
and certain real property
mortgages
(made
prior to the date hereof and from time to time
hereafter,
in
each case, by the Borrower or a Guarantor in favor of the
Collateral
Agent for
the benefit of the Collateral
Agent, the Trustee,
and the Noteholders,
each a
"MORTGAGE" and, together with the Indenture,
the Indenture Security
Agreement,
the Indenture
Pledge
Agreement and all Control
Agreements
(as defined in the
Indenture Security
Agreement)
executed and delivered in connection
therewith,
the "INDENTURE LOAN DOCUMENTS").
B. The
Borrower,
certain
lenders
(the
"Banks") and the Original
Lender
have
entered
into a Loan
Agreement
dated as of January 11, 2005 (the
"ORIGINAL
LOAN
AGREEMENT")
and the
Guarantors
and the Original
Lender have
entered into those
certain
guarantys and guarantor
security
agreements
(the
"GUARANTOR
DOCUMENTS")
pursuant to which the Original Lender agreed,
upon the
term and conditions
stated therein,
to make loans and advances to the Borrower
up to the principal
amount of
$10,000,000,
together with the fees,
interest,
expenses
and other
obligations
due under the
Original
Loan
Agreement.
The
repayment
of the
Obligations
(as that term is
defined in the
Original
Loan
Agreement) is secured by first priority
security
interests in and liens on the
Collateral.
C. One of the
conditions of the Original Loan Agreement is that the
priority of the security
interests in and liens on the Collateral to secure the
Loan Agreement
Secured
Obligations be senior to the security
interests in and
liens
on the
Collateral
to
secure
the
Indenture
Secured
Obligations
(as
hereinafter
defined),
in the
manner
and
to
the
extent
provided
in
this
Agreement.
-2-
D. The Original Lender and the Collateral Agent desire to enter
into
this Agreement concerning the respective rights of the Lender and
the Collateral
Agent with respect to the priority of their respective security
interests in and
liens on the Collateral.
E. The terms of the Indenture permit the Borrower and the
Guarantors
to enter into the Original Loan
Agreement,
subject to compliance
with certain
conditions,
and in connection
therewith
authorize
and direct the
Collateral
Agent to enter into a subordination
agreement substantially in the form of this
Agreement.
F. In order to induce
the
Original
Lender and the Banks to extend
credit to the Borrower and the Guarantors and for purposes of
certain conditions
precedent and covenants of the Original Loan Agreement,
the Original Lender and
the Collateral Agent hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 TERMS
DEFINED
ABOVE AND IN THE
RECITALS.
As used in
this Agreement, the following terms shall have the respective
meanings indicated
in the opening paragraph hereof and in the above Recitals:
"Agreement"
"Borrower"
"Collateral"
"Collateral Agent"
"Guarantor Documents"
"Original Loan Agreement"
"Indenture Loan Documents"
"Indenture"
"Original Lender"
"Original Loan Agreement"
"Trustee"
Section 1.02 LOAN AGREEMENT DEFINITIONS. All capitalized terms
which
are used but not defined
herein
shall have the same meaning as in the Original
Loan Agreement, as in effect on the date hereof.
Section
1.03
OTHER
DEFINITIONS.
As used in this
Agreement,
the
following terms shall have the meanings set forth below:
"Capital
Stock" means (a) in the case of a
corporation,
corporate
stock, (b) in the case of an association or business entity, any
and all shares,
interests,
participations,
rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited
liability
company,
partnership
or membership
interests
(whether
general or limited) and (d) any
other interest or participation
that confers on a Person the right to receive a
share of the profits and losses of, or
distributions of property of the issuing
Person.
-3-
"CASH
COLLATERAL"
means any Collateral
consisting of cash or cash
equivalents,
any security
entitlement
(as defined in the New York
Commercial
Code) and any financial assets (as defined in the New York
Commercial Code).
"CONTROL
COLLATERAL"
means
any
Collateral
consisting
of
a
certificated
security (as defined in the New York Commercial Code),
investment
property (as defined in the New York
Commercial
Code),
a deposit
account (as
defined in the New York Commercial
Code) and any other Collateral as to which a
Lien may be perfected through possession or control by the secured
party, or any
agent therefor.
"DISCHARGE OF LOAN AGREEMENT SECURED
OBLIGATIONS"
means payment in
full in
cash
of the
Loan
Agreement
Secured
Obligations
(other
than
Loan
Agreement
Secured
Obligations
consisting
of
contingent
indemnification
obligations
under the Lender Loan
Documents)
up to (but not in excess of) the
Maximum Loan Agreement Debt Amount including,
with respect to amounts available
to
be
drawn
under
outstanding
letters
of
credit
issued
thereunder
(or
indemnities
issued
pursuant
thereto
in
respect
of
outstanding
letters of
credit),
delivery of cash
collateral or backstop
letters of credit in respect
thereof in compliance with the terms of the Loan Agreement,
in each case, after
or concurrently with termination of all commitments to extend
credit thereunder.
"EQUITY INTERESTS" means Capital Stock and all warrants,
options or
other rights to acquire
Capital Stock (but
excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"GUARANTOR"
means the
Subsidiaries
of
Borrower,
other
than the
Immaterial
Subsidiaries,
that are organized
under the laws of a
jurisdiction
within the United States.
"INDENTURE
SECURED
OBLIGATIONS"
shall
mean
all
indebtedness
represented by the Notes,
together with
interest,
premiums,
fees,
costs and
expenses in respect thereof (including,
without limitation,
attorneys fees and
disbursements
and
including
interest
accrued
after
the
initiation
of any
Insolvency
Proceeding,
whether or not allowed or allowable
in any
Insolvency
Proceeding).
"INSOLVENCY PROCEEDING" means any proceeding commenced by or
against
any Person under any provision of the
Bankruptcy
Code or under any other state
or
federal
bankruptcy
or
insolvency
law,
assignments
for the
benefit
of
creditors, formal or informal moratoria, compositions, extensions
generally with
creditors, or proceedings seeking reorganization,
arrangement, or other similar
relief.
"LENDER" means the Original
Lender,
together with all
successors,
assigns, transferees,
participants,
replacement or refinancing lenders, of the
Original Lender, including any Person designated as a Lender or
"Bank" under any
Loan
Agreement;
PROVIDED that for purposes of this
Agreement,
the Collateral
Agent shall be entitled to deal only with the Original Lender until
such time as
the Original
Lender shall have assigned to another Lender all of its rights and
obligations
here under to such other Lender pursuant to an assignment which has
been provided by the Original
Lender to the Collateral
Agent and until receipt
thereof,
Collateral Agent shall not be liable for any such dealings
(including
-4-
the turning over of any Collateral or proceeds thereof to the
Original Lender at
a time when any other Lender and not the Original Lender was
entitled thereto).
"LENDER
COLLATERAL"
means all of Borrower's
and each
Guarantor's
right,
title and interest in, to, and under all real and personal
property and
assets of the Borrower and such Guarantor,
including,
without limitation,
all
Collateral and all "Collateral" as defined in the Loan Agreement.
"LENDER
LOAN
DOCUMENTS"
means
the
Loan
Agreement,
the
"Loan
Documents" as defined in the Original Loan Agreement,
the collateral
documents
and instruments
executed and delivered in connection therewith or in connection
with any other Loan Agreement hereunder, and such other agreements,
instruments
and certificates as defined in a Loan Agreement.
"LIEN" means any interest in an asset
securing an
obligation
owed
to, or a claim by, any Person other than the owner of the asset,
irrespective of
whether (a) such interest is based on the common law, statute, or
contract,
(b)
such interest is recorded or perfected, and (c) such interest is
contingent upon
the
occurrence
of some future event or events or the
existence of some future
circumstance or circumstances. Without limiting the generality of
the foregoing,
the term "Lien" includes the lien or security
interest arising from a mortgage,
deed
of
trust,
encumbrance,
pledge,
hypothecation,
assignment,
deposit
arrangement,
security
agreement,
conditional sale or trust receipt, or from a
lease,
consignment;
or
bailment
for
security
purposes
and
also
includes
reservations,
exceptions, encroachments,
easements, rights-of-way,
covenants,
conditions,
restrictions,
leases,
and other title exceptions and encumbrances
affecting Real Property.
"LIEN
PRIORITY" means with respect to any Lien of the Lender or the
Collateral
Agent in the
Collateral,
the order,
of
priority
of such Lien as
specified in Section 2.01.
"LOAN
AGREEMENT"
means the
Original
Loan
Agreement
as amended,
restated,
modified,
renewed, refunded,
replaced, or refinanced in whole or in
part from time to time,
including
any
agreement
extending
the
maturity of,
consolidating,
otherwise
restructuring
(including
adding
Subsidiaries
or
affiliates
of
the
Borrower
or any
other
persons
as
parties
thereto)
or
refinancing all or any portion of the
Obligations or Loan
Commitments as those
terms are defined in the Original Loan Agreement (or in any other
agreement that
itself
is a Loan
Agreement
hereunder)
and
whether
by the same or any other
agent,
lender, or group, of lenders and whether or not increasing the
amount of
indebtedness that may be incurred thereunder.
"LOAN AGREEMENT SECURED
OBLIGATIONS"
means all Obligations and all
other amounts
owing or due under the terms of the Loan
Agreement and the other
Lender Loan Documents, including any and all amounts payable under
or in respect
of the Lender Loan Documents, as amended, restated, modified,
renewed, refunded,
replaced,
or
refinanced
in whole
or in part
from
time to
time,
including
principal,
premium,
interest, fees, attorneys' fees, costs, charges, expenses,
reimbursement obligations,
any obligation to post cash collateral in respect of
letters of credit or indemnities in respect
thereof,
indemnities,
guarantees,
and all other amounts payable
thereunder or in respect thereof
(including,
in
each case, all amounts
accruing on or after the
commencement of any Insolvency
Proceeding relating to Borrower,
any Guarantor or any other Person irrespective
of
whether a claim for all or any
portion
of such
amounts
is
allowable
or
allowed in any Insolvency Proceeding).
-5-
"LOAN
DOCUMENTS"
means the Lender Loan Documents and the Indenture
Loan Documents.
MAXIMUM
PRIORITY
DEBT
AMOUNT"
means,
as
of
any
date
of
determination, (a) the principal amount of Loan Agreement Secured
Obligations as
of such date up to, but not in excess
of,
$10,000,000,
PLUS (b) any
premium,
interest, fees, attorneys' fees, costs, charges, expenses,
indemnities, and all
other
amounts
payable
under
the Loan
Agreement
or the
other
Lender
Loan
Documents or in respect of the Loan Agreement Secured Obligations
or clauses (a)
(including,
without
duplication,
all
guaranties
in
respect
thereof),
and
including, for each amount specified in clause (a) and (b), all
amounts accruing
on or after the commencement of any Insolvency
Proceeding relating to Borrower,
any Guarantor or any other Person irrespective of whether a claim
for all or any
portion of such amount is allowable or allowed in any Insolvency
Proceeding.
"NOTEHOLDERS" means each of the holders of the Notes.
"ORIGINAL LOAN
AGREEMENT"
shall have the meaning
assigned to such
term in the recitals to this Agreement.
"PARTY" means Lender and Collateral Agent.
"PERSON" means any natural person,
corporation,
limited
liability
company,
limited
partnership,
general
partnership,
limited
liability
partnership,
joint
venture,
trust,
land
trust,
business
trust,
or
other
organization,
irrespective of whether such organization is a legal entity,
and
shall include a government and any agency or political subdivision
thereof.
"PROCEEDS"
means (i) all
"proceeds" as defined in Article 9 of the
New York Commercial
Code with respect to the
Collateral,
and (ii) whatever is
recoverable
or recovered
when
Collateral is sold,
exchanged,
collected,
or
disposed of, whether voluntarily or involuntarily.
"RECOVERY" has the meaning set forth in Section 5.03.
"STANDSTILL
NOTICE"
means a
written
notice
from or on behalf of
Lender to the Collateral Agent stating that an Event of Default has
occurred and
stating that such written notice is a "Standstill Notice".
"STANDSTILL PERIOD" has the meaning set forth in Section 2.03.
RULES OF CONSTRUCTION.
Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular;
references to
the singular include the plural,
the term "including" is not limiting,
and the
term
"or"
has,
except
where
otherwise
indicated,
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 any particular provision of this Agreement.
Article,
section,
subsection,
clause,
schedule,
and
exhibit
references
herein
are
to
this
Agreement
unless
otherwise
specified.
Any reference in this Agreement to any
agreement,
instrument,
or document shall include all alterations,
amendments,
changes,
extensions,
modifications,
renewals,
replacements,
substitutions,
joinders,
and supplements
thereto and thereof,
as applicable
(subject to any
-6-
restrictions
on
such
alterations,
amendments,
changes,
extensions,
modifications, renewals, replacements,
substitutions, joinders, and supplements
set forth
herein).
Any
reference
herein to any Person
shall be construed to
include such Person's successors and assigns.
ARTICLE II.
LIEN PRIORITY
Section 2.01
AGREEMENT TO
SUBORDINATE.
Notwithstanding
the date,
time, method, manner or order of grant,
attachment,
or perfection of any Liens
granted to the Collateral
Agent, the Trustee,
or the Noteholders in respect of
all or any portion of the
Collateral
or of any Liens
granted to the Lender in
respect of all or any portion of the Lender Collateral,
or the order or time of
filing or
recordation of any document or instrument for perfecting the Liens
in
favor of Lender or the
Collateral
Agent (or the Trustee or any
Noteholder) in
any
Collateral
or any
provision
of the Uniform
Commercial
Code,
any other
applicable
law, the
Indenture,
the Loan
Documents or any other
circumstance
whatsoever,
the Collateral
Agent,
on behalf of itself,
the Trustee,
and the
Noteholders, hereby agrees that:
(a) (i) any Lien in respect of all or any portion of the
Collateral
now or hereafter held by or on behalf of the Collateral
Agent, the Trustee,
or
any
Noteholder
that
secures
all or any
portion
of
the
Indenture
Secured
Obligations,
shall in all
respects
be
junior
and
subordinate
to all Liens
granted to the Lender in the Lender
Collateral
to secure all or any portion of
the Loan Agreement Secured
Obligations up to (but not in excess of) the Maximum
Priority Debt Amount,
and (ii) any Lien in respect of all or any portion of the
Collateral
now or hereafter held by or on behalf of the Lender that secures
all
or any
portion
of the Loan
Agreement
Secured
Obligations
in
excess of the
Maximum Priority Debt Amount, shall in all respects be junior and
subordinate to
all Liens granted to the Collateral
Agent, the Trustee or any Noteholder in the
Collateral
to secure all or any portion of the Indenture
Secured
Obligations,
and
(b) (i) any Lien in
respect
of all,
or any
portion of the Lender
Collateral
now or hereafter held by or on behalf of the Lender that secures
all
or any
portion
of the Loan
Agreement
Secured
Obligations
up to (but not in
excess of) the Maximum Priority Debt Amount, shall in all respects
be senior and
prior to all
Liens
granted
to the
Collateral
Agent (or the
Trustee
or any
Noteholder)
in the
Collateral
to secure all or any
portion of the
Indenture
Secured
Obligations,
and (ii) any Lien in respect of all or any portion of the
Collateral now or hereafter held by or on behalf of the
Collateral
Agent,
the
Trustee,
or any
Noteholder
that
secures all or any portion of the
Indenture
Secured
Obligations,
shall in all
respects
be senior
and prior to all Liens
granted to the Lender in the Collateral to secure all or any
portion of the Loan
Agreement Secured Obligations in excess of the Maximum Priority
Debt Amount.
The Collateral
Agent, for and on behalf of itself,
the Trustee and
the Noteholders, acknowledges and agrees that, concurrently
herewith, the Lender
has been granted Liens upon all of the Collateral in which the
Collateral
Agent
has been granted Liens and the Collateral
Agent hereby
consents
thereto.
The
Lender
acknowledges
and agrees that the Collateral
Agent,
for the benefit of
itself, the Trustee, and the Noteholders, has been granted Liens
upon all of the
Lender Collateral and the Lender hereby consents
thereto.
The subordination of
Liens (up to the Maximum
Priority
Debt
Amount) by the
Collateral
Agent,
on
behalf of itself, the Trustee, and the Noteholders in favor of the
Lender herein
-7-
shall not be deemed to subordinate the Collateral
Agent's Liens to the Liens of
any other Person.
The subordination of Liens (in excess of the Maximum Priority
Debt Amount) in favor of the Collateral
Agent,
for the benefit of itself,
the
Trustee
and the
Noteholders
herein
shall not be deemed to
subordinate
such
Lender's Liens to the Liens of any other Person.
Section 2.02 WAIVER OF RIGHT TO CONTEST LIENS.
The Collateral Agent
agrees, on behalf of itself, the Trustee, and the Noteholders,
that it and they
shall not (and
hereby
waives,
on
behalf
of
itself,
the
Trustee,
and the
Noteholders
any right to) take any action to contest or challenge (or assist or
support any other Person in contesting or challenging),
directly or indirectly,
whether or not in any proceeding (including in any Insolvency
Proceeding),
the
validity, priority,
enforceability, or perfection of the Liens of the Lender in
respect of the Collateral. The Collateral Agent, for itself, the
Trustee, and on
behalf
of the
Noteholders,
agrees
that
none of the
Collateral
Agent,
the
Trustee,
or the Noteholders will take any action that would hinder any
exercise
of remedies undertaken by the Lender under the Lender Loan
Documents,
including
any public or private sale, lease,
exchange,
transfer, or other disposition of
the Collateral,
whether by foreclosure or otherwise.
The Collateral Agent, for
itself, the Trustee, and on behalf of the Noteholders, hereby
waives any and all
rights it, the Trustee, or the Noteholders may have as a junior
lien creditor or
otherwise to contest, protest, object to, interfere with the manner
in which the
Lender
seeks to enforce
the Liens in any portion of the
Collateral
(it being
understood and agreed that the terms of this Agreement shall govern
with respect
to the
Collateral
even if any portion of the Liens securing the Loan Agreement
Secured Obligations are avoided, disallowed, set aside, or
otherwise invalidated
in any judicial
proceeding or
otherwise).
The Lender agrees that it shall not
(and
hereby
waives any right to) take any action to contest or
challenge
(or
assist or support any other Person in
contesting or
challenging),
directly or
indirectly,
whether
or not
in any
proceeding
(including
in any
Insolvency
Proceeding), the validity, priority,
enforceability, or perfection of the Liens
of the Collateral Agent in respect of the Collateral. Following the
Discharge of
Loan Agreement Secured Obligations,
the Lender agrees that it will not take any
action that would hinder any exercise of remedies
undertaken by the
Collateral
Agent,
the Trustee,
or any
Noteholder
under the
Indenture
Loan
Documents,
including
any public or
private
sale,
lease,
exchange,
transfer;
or other
disposition of the
Collateral,
whether by foreclosure or otherwise.
Following
the Discharge of Loan Agreement
Secured
Obligations,
the Lender hereby waives
any and all
rights
it may have as a
junior
lien
creditor
or
otherwise
to
contest,
protest,
object to, interfere with the manner in which the Collateral
Agent,
the Trustee or any Noteholder
seeks to enforce the Liens in any portion
of the
Collateral
(it
being
understood
and
agreed
that the
terms of this
Agreement shall govern with respect to the Collateral even if any
portion of the
Liens securing the Indenture Secured
Obligations are avoided,
disallowed,
set
aside, or otherwise invalidated in any judicial proceeding or
otherwise).
Section 2.03 REMEDIES
STANDSTILL.
At any time after the occurrence
and
during
the
continuation
of an Event
of
Default
under
any of the Loan
Documents,
the Lender may send a Standstill Notice to the Collateral Agent.
The
Collateral Agent, on behalf of itself, the Trustee, and the
Noteholders, agrees,
that from and after the date of its receipt of any
Standstill
Notice,
none of
the Collateral
Agent,
the Trustee,
or any Noteholder will exercise any of its
rights or remedies in respect of the collection on, set off
against, marshalling
of,
or
foreclosure
on the
Collateral
or any
other
right
relating
to any
Collateral
(including the exercise of any voting rights relating to any
Capital
-8-
Stock
constituting
Collateral) under the Indenture Loan Documents,
applicable
law or
otherwise
as a
secured
creditor
and
will not
take or
receive
any
Collateral
in
connection
with
the
exercise
of any
such
right
or
remedy
(including
recoupment or set-off),
whether under the Indenture Loan Documents,
applicable
law, in an Insolvency
Proceeding or otherwise
unless and until (a)
the Lender has expressly waived or acknowledged the cure of the
applicable Event
of Default in writing or the Discharge of the Loan Agreement
Secured Obligations
shall have
occurred,
or (b) 90 days shall
have
elapsed
from the date of the
Collateral Agent's receipt of such Standstill Notice, except with
respect to any
Collateral
which the Lender is
pursuing
its rights or
remedies
as a secured
creditor to effect the collection,
foreclosure, sale, or other realization upon
or
disposition of such
collateral.
From and after the earlier to occur of (i)
the
Collateral
Agent's
receipt
of such
waiver or cure
notice,
or (ii) the
elapsing of such 90th day period,
any of the Collateral Agent, the Trustee,
or
any
Noteholder
may
commence to exercise
any of its rights and
remedies as a
secured creditor under the Indenture Loan Documents, applicable law
or otherwise
(subject to the provisions of this Agreement,
including Section 4.02 hereof and
except with respect to any such
Collateral
as to which the Lender is effecting
the collection,
foreclosure, sale or other realization upon or disposition of).
The Lender may only send 3
Standstill
Notices
following
the date
hereof (it
being
understood and agreed as clarification to the foregoing that no
more than
3 Standstill
Notices may be provided whether
delivered
hereunder or under any
corresponding
provision
of any
other
agreement
similar
hereto
that may be
delivered
pursuant
to Section
7.16) and no Event of Default
may serve as the
basis for any subsequent Standstill Notice unless 90 consecutive
days shall have
elapsed
from the date that
such
Event of
Default
was cured or waived by the
Lender, and no more than one Standstill Notice may be given by the
Lender in any
consecutive 365-day period. The time period during which the
Collateral Agent is
not permitted to exercise
rights or remedies
under this section is referred to
herein as the "STANDSTILL PERIOD".
Section 2.04 EXERCISE OF RIGHTS.
(a) NO OTHER RESTRICTIONS. Except as expressly set forth in this
Agreement,
each of the Collateral Agent, the Trustee, the Noteholders,
and the
Lender
shall
have any and all rights
and
remedies
it may have as a creditor
under
applicable law,
including the rights to exercise all rights and remedies
in
foreclosure or otherwise
with respect to any of the
Collateral;
PROVIDED,
HOWEVER,
that any such
exercise by the
Collateral
Agent,
the Trustee or the
Noteholders,
and any collection or sale of all or any portion of the Collateral
by the Collateral Agent, the Trustee or the Noteholders, shall be
subject to the
Liens of the Lender on the Collateral to the extent provided in
Section 2.01 and
to the provisions of this Agreement including Section 4.02 hereof.
In exercising
rights and remedies with respect to the
Collateral,
the Lender may enforce the
provisions of the Lender Loan Documents and exercise remedies
thereunder, all in
such order and in such manner as it may
determine
in the
exercise of its sole
discretion.
Such
exercise
and
enforcement
shall
include
the sale,
lease,
license, or other disposition of all or any portion of the
Collateral by private
or public sale or any other means
permissible
under applicable law;
PROVIDED
