Exhibit 2.20
INTERCREDITOR AND LIEN SUBORDINATION
AGREEMENT
among
WELLS FARGO FOOTHILL,
INC.,
as Agent,
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
as Collateral Agent,
B & B B, INC.
CASABLANCA RESORTS, LLC
OASIS INTERVAL MANAGEMENT, LLC
OASIS INTERVAL OWNERSHIP, LLC
OASIS RECREATIONAL PROPERTIES, INC.
RBG, LLC
and
VIRGIN RIVER CASINO CORPORATION
as Borrowers
Dated as of
December 20, 2004
INTERCREDITOR AND LIEN SUBORDINATION
AGREEMENT
THIS INTERCREDITOR AND LIEN SUBORDINATION
AGREEMENT dated as of December 20, 2004 (this “
Agreement ”) is made by and among WELLS FARGO
FOOTHILL, INC., in its capacity as the arranger, administrative
agent, and documentation agent (in such capacity, together with it
successors and assigns (if any) in such capacity, the “
Original Agent ”) under and pursuant to the Loan
Agreement (as hereinafter defined), THE BANK OF NEW YORK TRUST
COMPANY, N.A. (“ BNY ”), solely in its capacity
as collateral agent under the Indenture Loan Documents (as
hereinafter defined) (in such capacity, the “ Collateral
Agent ”), B & B B, INC., a Nevada corporation
(“ B&BB ”), CASABLANCA RESORTS, LLC, a
Nevada limited liability company (“ CBR ”),
OASIS INTERVAL MANAGEMENT, LLC, a Nevada limited liability company
(“ OIM ”), OASIS INTERVAL OWNERSHIP, LLC, a
Nevada limited liability company (“ OIO ”),
OASIS RECREATIONAL PROPERTIES, INC., a Nevada corporation (“
ORP ”), RBG, LLC, a Nevada limited liability company
(“ RBG ”), and VIRGIN RIVER CASINO CORPORATION,
a Nevada corporation (“ VRCC ”; B&BB, CBR,
OIM, OIO, ORP, RBG, and VRCC, are referred to hereinafter each
individually as a “ Borrower ,” and individually
and collectively, jointly and severally, as the “
Borrowers ”).
R E
C I T A L S:
A.
The Borrowers and BNY, in its capacity as Trustee (in such
capacity, the “ Trustee ”), have entered into an
Indenture, dated as of December 20, 2004 (the “
Indenture ”), pursuant to which the Borrowers 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 at maturity of $125,000,000.
The repayment of the Indenture Secured Obligations
(as hereinafter defined) is secured by security interests in
and liens on the assets and properties described in the Senior
Secured Note Security Agreement dated as of the date hereof (the
“ Indenture Security Agreement ”) made by the
Borrowers in favor of the Collateral Agent for the benefit of the
Collateral Agent, the Trustee, and the Noteholders, a pledge
agreement made by Robert R. Black, Sr., as trustee of the Robert R.
Black, Sr. Gaming Properties Trust u/a/d May 24, 2004 and R Black,
Inc., a Nevada corporation in favor of the Collateral Agent for the
benefit of the Collateral Agent, the Trustee, and the Noteholders
(the “ Indenture Parent Pledge Agreement ”) and
certain real property mortgages, including the Leasehold and Fee
Deed of Trust, Security Agreement and Fixture Filing with
Assignment of Rents dated as of the date hereof by and among ORP,
as trustor, Transnation Title Insurance Company, as trustee, and
the Trustee, as beneficiary and the Leasehold and Fee Deed of
Trust, Security Agreement and Fixture Filing with Assignment of
Rents dated as of December , 2004, by
and among VRCC, RBG, CBR, and OIO, as trustors, Nevada Title
Company, as trustee, and the Trustee, together with such other
mortgages, deeds of trust, assignments and other real property
1
Liens as may be made as of the date hereof and
from time to time hereafter, in each case, by a Borrower 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 other collateral
or security documents in favor of the Collateral Agent or the
Trustee now or hereafter executed and delivered in connection with
the Indenture or the Indenture Security Agreement, the “
Indenture Agreements ”).
B.
Borrowers and the Original Agent have entered into a Credit
Agreement dated as of
December , 2004 (the “
Original Loan Agreement ”) pursuant to which the
Original Agent and the lenders from time to time party thereto (the
“ Original Lenders”) agreed, upon the terms and
conditions stated therein, to make loans and advances to and to
issue letters of credit on account of the Borrower and the
Guarantors up to the principal amount of $15,000,000, together
with the fees, interest, expenses and other obligations due under
the Original Loan Agreement. The repayment of the Loan
Agreement Priority Obligations (as hereinafter defined) is secured
by security interests in and liens on the assets and properties
described in the Security Agreement dated as of the date hereof
(the “ Loan Agreement Security Agreement ”) made
by the Borrowers in favor of the Agent for the benefit of the
Lenders the Trademark Security Agreement, dated as of the date
hereof, made by
in favor of the Agent for the benefit of the Lenders (collectively,
the “ Indenture Trademark Security Agreements
”), a pledge agreement made by Robert R. Black, Sr., as
trustee of the Robert R. Black Sr. Gaming Properties Trust u/a/d
May 24, 2004 and R Black, Inc., a Nevada corporation in favor of
the Agent for the Lenders (the “ Loan Agreement Parent
Pledge Agreement ”) and certain real property mortgages
(made as of the date hereof and from time to time hereafter, in
each case, by a Borrower in favor of the Agent for the benefit of
the Lenders, each a “ Mortgage ” and, together
with the Loan Agreement, Loan Agreement Security Agreement, the
Loan Agreement Parent Pledge Agreement, the Loan Agreement
Trademark Security Agreement, and all Control Agreements (as
defined in the Loan Agreement) executed and delivered in connection
therewith, the “ Loan Agreements ”).
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 Priority 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.
D.
The Agent and the Collateral Agent desire to enter into this
Agreement concerning the respective rights of the Agent 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 Borrowers to enter into the
Original Loan Documents, subject to compliance with certain
conditions, and in connection
2
therewith authorize and direct the Collateral
Agent to enter into an intercreditor agreement substantially in the
form of this Agreement.
F.
In order to induce the Agent and Lenders to extend credit to the
Borrowers and for purposes of certain conditions precedent and
covenants of the Original Loan Agreement, the Agent 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”
“Borrowers”
“Collateral Agent”
“Indenture Agreements”
“Indenture”
“Original Lenders”
“Original Loan
Agreement”
“Original Loan
Documents”
“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:
“ Agent ” means the Original
Agent, together with its successors, assigns, transferees, and any
Person that has a similar title (such as “Agent” or
“Administrative Agent”) under any Loan
Agreement.
“ Bankruptcy Code ” means
title 11 of the United States Code, as in effect from time to
time.
“ 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).
“ Collateral ” means all
assets and properties and all interests in assets or properties now
owned or hereafter acquired by any Borrower, any Guarantor or any
other Person in or upon which a Lien is granted or purported to be
granted under any of the Loan Documents or the Indenture Loan
Documents and all products and proceeds of any of the
foregoing.
“ 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.
“ Default Notice ” has the
meaning set forth in Section 2.03 .
“ DIP Financing ” has the
meaning set forth in Section 6.01 .
“ Discharge of Loan Agreement Priority
Obligations ” means payment in full in cash of the Loan
Agreement Priority Obligations (other than Loan Agreement Priority
Obligations consisting of contingent indemnification obligations
under the Lender Loan Documents) up to (but not in excess of) the
Maximum Priority 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 any
Person that guarantees the Loan Agreement Priority
Obligations.
“ Indenture Loan Documents ”
shall mean the Indenture, the Notes, the Mortgages, the Indenture
Agreements, the Notes, the Guarantees (as defined in the Indenture)
of the Notes, the Registration Rights Agreement (as defined in the
Indenture) and such other agreements, instruments and certificates
as defined or referred to in the Indenture.
“ Indenture Secured Obligations
” shall mean all indebtedness represented by the Notes,
together with interest, premiums, fees, costs and expenses in
respect thereof
4
(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), and all other Obligations
(as such term is defined in the Indenture) under any of the
Indenture Loan Documents.
“ 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.
“ Lenders ” means the
Original Lenders, together with all successors, assigns,
transferees, participants, replacement or refinancing lenders, of
the Original Lenders, including any Person designated as a Lender
under any 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 Agent 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 any Borrower or any other Persons as
parties thereto) or refinancing all or any portion of the
Obligations or 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
5
other agent, lender, or group of lenders and
whether or not increasing the amount of indebtedness that may be
incurred thereunder.
“ Loan Agreement Priority
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 any Borrower, any other Person irrespective of whether
a claim for all or any portion of such amounts is allowable or
allowed in any Insolvency Proceeding).
“ 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 (including the undrawn amount of Letters of
Credit) of Loan Agreement Priority Obligations as of such date up
to, but not in excess of, $15,000,000, plus
(b) any premium, interest, fees, attorneys’ fees, costs,
charges, expenses and indemnities, owed under the Loan Agreement or
the other Lender Loan Documents or in respect of the Loan Agreement
Priority Obligations and including, for each amount specified in
clauses (a) and (b), all amounts accruing on or after the
commencement of any Insolvency Proceeding relating to any Borrower
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 Agent 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
6
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 Agent 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 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 Agent or any Lender in respect of all
or any portion of the Collateral, or the order or time of filing or
recordation of any document or instrument for perfecting the Liens
in favor of Agent or any 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 Agent or any
Lender in the Collateral to secure all or any portion of the Loan
Agreement Priority Obligations up to (but not in
7
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 Agent that
secures all or any portion of the Loan Agreement Priority
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
Collateral now or hereafter held by or on behalf of the Agent or
any Lender that secures all or any portion of the Loan Agreement
Priority 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 Agent in the Collateral to secure all or any portion of the
Loan Agreement Priority 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 Agent and the Lenders have 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 Agent, for
and on behalf of itself and the Lenders, 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
Collateral and the Agent hereby consents thereto. The
subordination of Liens (up to (but not in excess of) the Maximum
Priority Debt Amount) by the Collateral Agent, on behalf of itself,
the Trustee, and the Noteholders in favor of the Agent herein 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
Agent’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 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 Agent or Lenders in respect of the Collateral. Prior to
Discharge of the Loan Agreement Priority Obligations, 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 Agent or Lenders under
the
8
Lender Loan Documents, including any public or
private sale, lease, exchange, transfer, or other disposition of
the Collateral, whether by foreclosure or otherwise. Prior to
Discharge of the Loan Agreement Priority Obligations, 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
Agent or Lenders seek 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 Priority
Obligations are avoided, disallowed, set aside, or otherwise
invalidated in any judicial proceeding or otherwise). The
Agent, for and on behalf of itself and the Lenders, 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 Priority Obligations, the Agent,
for and on behalf of itself and the Lenders, 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 Priority Obligations, the Agent
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 Agent 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 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 Agent has
expressly waived or acknowledged the cure of the applicable Event
of Default in writing or the Discharge of the Loan Agreement
Priority Obligations shall have occurred, or (b) 120 days
shall have elapsed from the date of the
9
Collateral Agent’s receipt of such
Standstill Notice, except with respect to any Collateral which the
Agent 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 120th 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). So long as the Agent has not sent a
Standstill Notice to the Collateral Agent, the Collateral Agent may
exercise its rights or remedies in respect of the Collateral under
the Indenture Loan Documents after the 10th Business Day
following receipt by the Agent of a Notice of Intent to Exercise
(as defined below). The Agent 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 120 consecutive days shall have elapsed from the
date that such event of Default was cured or waived by the Agent ,
and no more than one Standstill Notice may be given by the Agent 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 .” If at any time other than
during any Standstill Period an “Event of
Default”
|
