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
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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
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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.
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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).
“ 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
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(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
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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
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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
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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
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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
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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”
