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.
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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.
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"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
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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).
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"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
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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
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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
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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,
that the Lender agrees to provide copies of any notices that it
is required
under applicable law to deliver to the Borrower or any
Guarantor to the
Collateral Agent; PROVIDED, FURTHER, that the failure to provide
any such copies
to the Collateral Agent shall not impair any of the Lender's rights
hereunder.
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(b) RELEASE OF LIENS. In the event of any such
private or public
sale, Collateral Agent agrees, on behalf of itself, the
Trustee, and the
Noteholders, that such sale will be free and clear of the Liens
securing the
Indenture Secured Obligations and, if the sale or other disposition
includes the
Equity Interests in Borrower or any Guarantor, agrees to release
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