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 the entities
whose Equity Interests are sold from all Indenture Secured Obligations so long
as Lender also releases the entities whose Equity Interests are sold from all
Loan Agreement Secured Obligations. In furtherance thereof, Collateral Agent
agrees that it will execute any and all Lien releases or other documents
reasonably requested by Lender in connection therewith, so long as the proceeds
from such sale or other disposition of the Collateral are applied in accordance
with the terms of this Agreement.
(c) Subject to Section 3.01, the Collateral Agent, the Trustee
and the Noteholders may exercise, and nothing herein shall constitute a waiver
of, any right it may have at law or equity to receive notice of, or to commence
or join with any creditor in commencing any Insolvency Proceeding or to join or
participate in, any action or proceeding or other activity described in Section
3.01; PROVIDED, HOWEVER, that exercise of any such right by the Collateral Agent
shall be subject to all of the terms and conditions of this Agreement, including
the obligation to turn over Collateral and Proceeds to the Lender for
application to the Loan Agreement Secured Obligations as provided in Section
4.02.
(d) The Collateral Agent may make such demands or file such
claims in respect of the Indenture Secured Obligations as may be necessary to
prevent the waiver or bar of such claims under applicable statutes of
limitations or other statutes, court orders or rules of procedure, but except as
provided in this Section 2.04, the Collateral Agent shall not take any actions
restricted by this Agreement until the Discharge of Loan Agreement Secured
Obligations shall have occurred.
(e) Following the Discharge of Loan Agreement Secured
Obligations, the other provisions of this Section 2.04 shall apply to the
Collateral Agent, for the benefit of itself, the Trustee and the Noteholders as
if it was the Lender and the Lender was the Collateral Agent, MUTATIS MUTANDIS.
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ARTICLE III.
ACTIONS OF THE PARTIES
Section 3.01 LIMITATION ON CERTAIN ACTIONS. Notwithstanding any
other provision hereof, during any Standstill Period prior to the date that the
Discharge of Loan Agreement Secured obligations occurs, the Collateral Agent
will not:
(a) commence receivership or foreclosure proceedings against
Borrower, any Guarantor, or any Collateral;
(b) sell, collect, transfer or dispose of any Collateral or
Proceeds; or
(c) notify third party account debtors to make payment directly
to it or any of its agents or other Persons acting on its behalf.
Section 3.02 AGENT FOR PERFECTION. Each of the Lender and the
Collateral Agent, for and on behalf of itself, the Trustee, and each Noteholder,
as applicable, agree to hold all Control Collateral and Cash Collateral that is
part of the Collateral in its respective possession, custody, or control (or in
the possession, custody, or control of agents or bailees for either, as
applicable) as agent for the other solely for the purpose of perfecting the
security interest granted to each in such Control Collateral or Cash Collateral
subject to the terms and conditions of this Section 3.02. None of the Lender,
the Collateral Agent, the Trustee, or the Noteholders, as applicable, shall have
any obligation whatsoever to the others to assure that the Control Collateral is
genuine or owned by Borrower, any Guarantor or any other Person or to preserve
rights or benefits of any Person. The duties or responsibilities of the Lender
and the Collateral Agent under this Section 3.02 are and shall be limited solely
to holding or maintaining control of the Control Collateral and the Cash
Collateral as agent for the other for purposes of perfecting the Lien held by
the Collateral Agent or the Lender, as applicable. The Lender is not and shall
not be deemed to be a fiduciary of any kind for the Collateral Agent, the
Trustee, the Noteholders or any other Person. The Collateral Agent is not and
shall not be deemed to be a fiduciary of any kind for the Lender or any other
Person. In the event that (a) any of the Collateral Agent, the Trustee, or any
Noteholder receives any Proceeds or Lender Collateral in contravention of the
Lien Priority, or (b) the Lender receives any Proceeds or Collateral in
contravention of the Lien Priority, it shall promptly pay over such Proceeds or
Collateral to (i) in the case of clause (a), the Lender, or (ii) in the case of
clause (b), the Collateral Agent, in the same form as received with any
necessary endorsements, for application in accordance with the provisions of
Section 4.02 of this Agreement.
ARTICLE IV.
NOTICES AND APPLICATION OF PROCEEDS
Section 4.01 NOTICES OF EXERCISE. Concurrently with any exercise by
the Collateral Agent of any of its rights and remedies under the Indenture Loan
Documents following the occurrence of any default under the Indenture, the
Notes, or the Indenture Loan Documents, the Collateral Agent shall give notice
of such exercise to the Lender and shall only exercise such rights or remedies
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in a manner consistent with the terms of this Agreement. Concurrently with any
exercise by the Lender of any of its rights and remedies under the Lender Loan
Documents following the occurrence of any default under the Lender Loan
Documents, the Lender shall give notice of such exercise to the Collateral Agent
and shall only exercise such rights or remedies in a manner consistent with the
terms of this Agreement.
Section 4.02 APPLICATION OF PROCEEDS.
(a) REVOLVING NATURE OF LOAN AGREEMENT SECURED OBLIGATIONS. As
long as the Lender is not exercising any of its remedies as a secured creditor
under the Lender Loan Documents and including during any Standstill Period, the
Lender may apply any and all of the proceeds of the Collateral consisting of
accounts receivable, other rights to payment or Cash Collateral in accordance
with the provisions of the Lender Loan Documents, subject to the provisions of
this Agreement, including Sections 3.02 and 4.02 hereof. The Collateral Agent,
for and on behalf of itself, the Trustee, and the Noteholders, expressly
acknowledges and agrees that (a) any such application of the proceeds of
accounts receivable, other rights to payment or Cash Collateral or the release
of any Lien by the Lender upon any portion of the Collateral in connection with
a Permitted Disposition (as that term is defined in the Lender Loan Documents)
shall not be considered to be the exercise of remedies under this Agreement; and
(b) all Proceeds or Cash Collateral received by Lender in connection therewith
may be applied, reversed, reapplied, credited or reborrowed, in, whole or in
part, as Loan Agreement Secured Obligations without reducing the Maximum
Priority Debt Amount.
(b) TURNOVER OF CASH COLLATERAL AFTER PAYMENT. Upon the
Discharge of the Loan Agreement Secured Obligations, the Lender shall deliver to
the Collateral Agent or execute such documents as the Collateral Agent may
reasonably request to cause the Collateral Agent to have control over any Cash
Collateral or Control Collateral still in Lender's possession, custody or
control in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct, to be applied by the
Collateral Agent to the Indenture Secured Obligations. Proceeds of any exercise
by the Lender or the Collateral Agent, as applicable, of any of their respective
secured creditor rights or remedies under any of the Loan Documents, under
applicable law, or otherwise with respect to any Collateral or Proceeds, shall
be (a) until the Discharge of the Loan Agreement Secured Obligations, retained
by the Lender or promptly turned over by the Collateral Agent, the Trustee, or
any Noteholder, as the case may be, to the Lender in the same form as received,
with any necessary endorsements, (b) after the Discharge of the Loan Agreement
Secured Obligations and until all Indenture Secured Obligations have been paid
in full in cash, retained by the Collateral Agent or promptly turned over by the
Lender to the Collateral Agent in the same form as received, with any necessary
endorsements, and (c) if there are any amounts still due or any obligations
outstanding to the Lender under the Lender Loan Documents in excess of the
Maximum Priority Debt Amount after the payment in full in cash of all Indenture
Secured Obligations, shall be retained by the Lender or promptly turned over by
the Collateral Agent to the Lender in the same form as received, with any
necessary endorsements.
(c) APPLICATION OF PROCEEDS. The Lender and the Collateral Agent
hereby agree that all Collateral and all Proceeds received by either of them
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upon the exercise of any their secured creditor rights or remedies under any of
the Loan Documents, applicable law, or otherwise shall be applied,
FIRST, to the payment of costs and expenses of the Lender, or of
the Collateral Agent, the Trustee, and the Noteholders, as applicable, in
connection with such exercise,
SECOND, to the payment of the Loan Agreement Secured Obligations
up to (but not in excess of) the Maximum Priority Debt Amount,
THIRD, to the payment of the Indenture Secured Obligations, and
FOURTH, to the payment of any Loan Agreement Secured Obligations
in excess of the Maximum Priority Debt Amount.
In exercising remedies, whether as a secured creditor or otherwise, the Lender
shall have no obligation or liability to the Collateral Agent, the Trustee, or
to any Noteholder and the Collateral Agent shall have no obligation or liability
to the Lender regarding the adequacy of any Proceeds or for any action or
omission save and except solely an action or omission that breaches the express
obligations undertaken by each Party under the terms of this Agreement.
Section 4.03 SPECIFIC PERFORMANCE. Each of the Lender and the
Collateral Agent is hereby authorized to demand specific performance of this
Agreement, whether or not the Borrower or any Guarantor shall have complied with
any of the provisions of any of the Lender Loan Documents, at any time when the
other shall have failed to comply with any of the provisions of this Agreement
applicable to it; PROVIDED, HOWEVER, the remedy of specific performance shall
not be available, and the asserting party shall be free to assert any and all
legal defenses it may possess, if such remedy would result in, or otherwise
constitute, a violation of the Employee Retirement Income Security Act of 1974,
as amended. Each of the Lender and the Collateral Agent hereby irrevocably
waives any defense based on the adequacy of a remedy at law, which might be
asserted as a bar to such remedy of specific performance.
ARTICLE V.
INTERCREDITOR ACKNOWLEDGEMENTS AND WAIVERS
Section 5.01 NOTICE OF ACCEPTANCE AND OTHER WAIVERS.
(a) All Loan Agreement Secured Obligations at any time made or
incurred by Borrower, any of its Subsidiaries or any Guarantor shall be deemed
to have been made or incurred in reliance upon this Agreement, and the
Collateral Agent, on behalf of itself, the Trustee, and the Noteholders, hereby
waives (i) notice of acceptance, or proof of reliance, by the Lender of this
Agreement, and (ii) notice of the existence, renewal, extension, accrual,
creation, or non-payment of all or any part of the Loan Agreement Secured
Obligations. Neither the Lender nor any of its affiliates, directors, officers,
employees, or agents shall be liable for failure to demand, collect, or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral or to take any other
action whatsoever with regard to the Collateral or any part thereof, except as
specifically provided in this Agreement. If the Lender honors (or fails to
honor) a request by the Borrower for an extension of credit pursuant to the Loan
Agreement or any of the Lender Loan Documents, whether Lender has knowledge that
the honoring of (or failure to honor) any such request would constitute a
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default under the terms of the Indenture or any Indenture Loan Document or an
act, condition, or event that, with the giving of notice or the passage of time,
or both, would constitute such a default, or if Lender otherwise should exercise
any of its contractual rights or remedies under the Lender Loan Documents
(subject to the express terms and conditions hereof), Lender shall not have any
liability whatsoever to the Collateral Agent, the Trustee or any Noteholder as a
result of such action, omission, or exercise (so long as any such exercise does
not breach the express terms and provisions of this Agreement). The Lender will
be entitled to manage and supervise its loans and extensions of credit under the
Loan Agreement and other Lender Loan Documents as the Lender may, in its sole
discretion, deem appropriate, and the Lender may manage its loans and extensions
of credit without regard to any rights or interests that the Collateral Agent,
the Trustee, or any of the Noteholders have in the Collateral or otherwise
except as otherwise expressly set forth in this Agreement. The Collateral Agent,
on behalf of itself, the Trustee, and the Noteholders, agrees that the Lender
shall not incur any liability as a result of a sale, lease, license, or other
disposition of the Collateral, or any part thereof, pursuant to the Lender Loan
Documents conducted in accordance with mandatory provisions of applicable law.
(b) None of Collateral Agent, Trustee, or any of the Noteholders
nor any of their affiliates, directors, officers, employees, or agents shall be
liable for failure to demand, collect, or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral or to take any other action whatsoever with regard to
the Collateral or any part thereof, except as specifically provided in this
Agreement. If Collateral Agent, Trustee, or any of the Noteholders should
exercise any of their contractual rights or remedies under the Indenture Loan
Documents (subject to the express terms and conditions hereof), none of
Collateral Agent, Trustee or any of the Noteholders shall have any liability
whatsoever to the Lender as a result of such action, omission, or exercise (so
long as any such exercise does not breach the express terms and provisions of
this Agreement). The Collateral Agent, Trustee, and Noteholders will be entitled
to manage and supervise their loans and extensions of credit under the Indenture
Loan Documents as they may, in their sole discretion, deem appropriate, and they
may manage their loans and extensions of credit without regard to any rights or
interests that the Lender has in the Collateral or otherwise except as otherwise
expressly set forth in this Agreement. Subject to Section 2.03, the Lender
agrees that none of the Collateral Agent, the Trustee, or the Noteholders shall
incur any liability as a result of a sale, lease, license, or other disposition
of the Collateral, or any part thereof, pursuant to the Indenture Loan Documents
conducted in accordance with mandatory provisions of applicable law.
Section 5.02 MODIFICATIONS TO LENDER LOAN DOCUMENTS AND INDENTURE
LOAN DOCUMENTS.
(a) The Collateral Agent, on behalf of itself, the Trustee, and
the Noteholders, hereby agrees that, without affecting the obligations of the
Collateral Agent, the Trustee and the Noteholders hereunder, the Lender may, at
any time and from time to time, in its sole discretion without the consent of or
notice to the Collateral Agent, the Trustee or any Noteholder (except to the
extent such notice or consent is required pursuant to the express provisions of
this Agreement), and without incurring any liability to the Collateral Agent,
the Trustee or any Noteholder or impairing or releasing the subordination
provided for herein, amend, restate, supplement, replace, refinance, extend,
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consolidate, restructure, or otherwise modify the Loan Agreement or any of the
Lender Loan Documents in any manner whatsoever, including to
(i) change the manner, place, time, or terms of payment
or renew or alter, all or any of the Loan Agreement Secured
Obligations or otherwise amend, restate, supplement, or
otherwise modify in any manner, or grant any waiver or release
with respect to, all or any part of the Loan Agreement Secured
Obligations or any of the Lender Loan Documents,
(ii) retain or obtain a Lien on any property of any
Person to secure any of the Loan Agreement Secured Obligations,
and in that connection to enter into any additional Lender Loan
Documents,
(iii) amend, or grant any waiver, compromise or release,
with respect to, or consent to any departure from, any guaranty
or other obligations of any Person obligated in any manner under
or in respect of the Loan Agreement Secured Obligations,
(iv) release its Lien on any Collateral or other
property,
(v) exercise or refrain from exercising any rights
against Borrower, any Guarantor or any other Person,
(vi) retain or obtain the primary or secondary
obligation of any other Person with respect to any of the Loan
Agreement Secured Obligations, and
(vii) otherwise manage and supervise the Loan Agreement
Secured Obligations as the Lender shall deem appropriate.
(b) The Lender hereby agrees that Collateral Agent, on behalf of
itself, the Trustee, and the Noteholders may, at any time and from time to time,
in its sole discretion without the consent of or notice to the Lender (except to
the extent such notice or consent is required pursuant to the express provisions
of this Agreement), and without incurring any liability to the Lender or
impairing or releasing the subordination provided for herein, amend, restate,
supplement, replace, refinance, extend, consolidate, restructure, or otherwise
modify the Indenture Loan Documents in any manner whatsoever provided, however,
that in no event shall Collateral Agent, the Trustee, or any Noteholder obtain a
Lien on any assets of Borrower or any Guarantor not constituting Collateral
unless (i) Lender also obtains a Lien on such assets or (ii) Lender declines in
a writing to Collateral Agent to obtain a Lien on such assets.
(c) Notwithstanding anything to the contrary herein, this
Section 5.02 shall not be construed to constitute a waiver by the Collateral
Agent, the Trustee, or any Noteholder of Section 4.12 of the Indenture.
(d) Notwithstanding anything to the contrary herein, in no event
shall Indebtedness represented by any Notes issued pursuant to the Indenture,
including any Notes (or represented by any other evidence of indebtedness for
borrowed money under the Notes or the Indenture) at any time exceed an aggregate
principal amount equal to $65,000,000.
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Section 5.03 REINSTATEMENT AND CONTINUATION OF AGREEMENT.
(a) If Lender is required in any Insolvency Proceeding or
otherwise to turn over or otherwise pay to the estate of the Borrower, any of
its Subsidiaries, any Guarantor or any other Person any amount (a "RECOVERY"),
then the Loan Agreement Secured Obligations shall be reinstated to the extent of
such Recovery. If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such
prior termination shall not diminish, release, discharge, impair, or otherwise
affect the obligations of the parties hereto from such date of reinstatement.
All rights, interests, agreements, and obligations of the Collateral Agent, the
Trustee, the Lender, and the Noteholders under this Agreement shall remain in
full force and effect and shall continue irrespective of the commencement of, or
any discharge, confirmation, conversion, or dismissal of any Insolvency
Proceeding by or against Borrower, any of its Subsidiaries or any Guarantor or
any other circumstance which otherwise might constitute a defense available to,
or a discharge of the Borrower, any Subsidiary or any Guarantor in respect of
the Loan Agreement Secured Obligations. No priority or right of the Lender shall
at any time be prejudiced or impaired in any way by any act or failure to act on
the part of the Borrower, any of its Subsidiaries or any Guarantor or by the
noncompliance by any Person with the terms, provisions, or covenants of the Loan
Agreement, the Indenture or any of the other Loan Documents, regardless of any
knowledge thereof which the Lender may have.
(b) If Collateral Agent, the Trustee, or any Noteholder is
required in any Insolvency Proceeding or otherwise to turn over or otherwise pay
to the estate of the Borrower, any of its Subsidiaries, any Guarantor or any
other Person a Recovery, then the Indenture Secured Obligations shall be
reinstated to the extent of such Recovery. No priority or right of the
Collateral Agent, the Trustee, or any Noteholder shall at any time be prejudiced
or impaired in any way by any act or failure to act on the part of the Borrower,
any of its Subsidiaries or any Guarantor or by the noncompliance by any Person
with the terms, provisions, or covenants of the Loan Agreement, the Indenture or
any of the other Indenture Loan Documents, regardless of any knowledge thereof
which the Collateral Agent, the Trustee, or any Noteholder may have.
ARTICLE VI.
INSOLVENCY PROCEEDINGS
Section 6.01 DIP FINANCING. If the Borrower or any Guarantor shall
be subject to any Insolvency Proceeding and the Lender shall desire, prior to
the Discharge of Loan Agreement Secured Obligations, to permit the use of cash
collateral or to permit Borrower or any Guarantor to obtain financing under
Section 363 or Section 364 of Title 11 of the United States Code or any similar
provision under the law applicable to any Insolvency Proceeding ("DIP
FINANCING") to be secured by all or any portion of the Collateral, then the
Collateral Agent, on behalf of itself, the Trustee, and the Noteholders, agrees
that it will raise no objection to such use of cash collateral or DIP Financing
and will not request adequate protection or any other relief in connection with
its or their interest in any such Collateral except to the extent specified in
this Section 6.01. To the extent the Liens securing the Loan Agreement Secured
Obligations are subordinated or pari passu with such DIP Financing, the
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Collateral Agent, for and on behalf of itself, the Trustee, and the Noteholders,
hereby agrees that its Liens in the Collateral shall be subordinated to such DIP
Financing (and all obligations relating thereto) upon the terms and conditions
specified in this Agreement. Until the Discharge of Loan Agreement Secured
Obligations has occurred, the Collateral Agent, on behalf of itself, the
Trustee, and the Noteholders, agrees that none of them shall seek relief from
the automatic stay or any other stay in any Insolvency Proceeding in respect of
the Collateral and will not provide or offer to provide any DIP Financing
secured by a Lien senior to or pari passu with the Liens securing the Loan
Agreement Secured Obligations, in each case unless the Lender otherwise has
provided its express written consent.
Section 6.02 NO CONTEST. The Collateral Agent, on behalf of itself,
the Trustee, and the Noteholders, agrees that, prior to the Discharge of Loan
Agreement Secured Obligations, none of them shall contest (or support any other
Person contesting) (a) any request by the Lender for adequate protection, or (b)
any objection by the Lender to any motion, relief, action, or proceeding based
on Lender claiming that its interest in the Collateral is not adequately
protected or any other similar request under any law applicable to an Insolvency
Proceeding. Notwithstanding the foregoing, in any Insolvency Proceeding, if the
Lender is granted adequate protection in the form of additional collateral in
connection with any DIP Financing or use of cash collateral under Section 363 or
Section 364 of Title 11 of the United States Code or any similar law applicable
to any Insolvency Proceeding, then the Collateral Agent, on behalf of itself,
the Trustee, or any of the Noteholders, may seek or request adequate protection
in the form of a Lien on such additional collateral, which Lien hereby is and
shall be deemed to be subordinated to the Liens securing the Loan Agreement
Secured Obligations up to (but not in excess of) the Maximum Priority Debt
Amount and such DIP Financing (and all obligations relating thereto) on the same
basis as the Lien Priority. In the event the Collateral Agent, on behalf of
itself, the Trustee, and the Noteholders, seeks or requests adequate protection
and such adequate protection is granted in the form of Liens in respect of
additional collateral, then the Collateral Agent, on behalf of itself, the
Trustee, and each of the Noteholders, agrees that the Lender also shall be
granted a senior Lien on such additional collateral as security for the Loan
Agreement Secured Obligations (and for any such DIP Financing) and that any Lien
on such additional collateral securing the Indenture Secured Obligations shall
be subordinated to the Liens in respect of such additional collateral securing
the Loan Agreement Secured Obligations and any such DIP Financing and any other
Liens granted to the Lender as adequate protection on the same basis as the
other Liens securing the Indenture Secured Obligations are subordinated to the
Loan Agreement Secured Obligations under this Agreement up to the Maximum
Priority Debt Amount. Nothing contained herein shall prohibit or in any way
limit the Lender, prior to the Discharge of Loan Agreement Secured Obligations,
from objecting in any Insolvency Proceeding or otherwise to any action taken by
the Collateral Agent, the Trustee or any of the Noteholders, including the
seeking by the Collateral Agent, the Trustee or any Noteholder of adequate
protection or the asserting by the Collateral Agent, the Trustee or any
Noteholder of any of its rights and remedies under the Indenture Loan Documents
or otherwise.
Section 6.03 ASSET SALES. The Collateral Agent agrees, on behalf of
itself, the Trustee, and the Noteholders, that it will not oppose any sale
consented to by Lender of Collateral pursuant to Section 365(f) of Title 11 of
the United States Code (or any similar provision in any other applicable
Bankruptcy Law) so long as the proceeds of such sale are applied in accordance
with this Agreement.
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Section 6.04 ENFORCEABILITY. The provisions of this Agreement are
intended to be and shall be enforceable under Section 510 of Title 11 of the
United States Code. The Collateral Agent, on behalf of itself, the Trustee, and
the Noteholders, agrees that all distributions that the Collateral Agent, the
Trustee, or any Noteholder receives in any Insolvency Proceeding on account of
the Collateral or Proceeds shall be held in trust by such Person and turned over
to the Lender for application in accordance with Section 4.02 of this Agreement.
To the extent that any amounts received by the Collateral Agent, the Trustee, or
any Noteholder are paid over in connection with this provision, the obligations
owed by the Borrower to such Person will be deemed to be reinstated to the
extent of the amounts so paid over.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 RIGHTS OF SUBROGATION. The Collateral Agent agrees that
no payment or distribution to the Lender pursuant to the provisions of this
Agreement shall entitle the Collateral Agent, the Trustee, or any Noteholder to
exercise any rights of subrogation in respect thereof until the Discharge of
Loan Agreement Secured Obligations shall have occurred. Following the Discharge
of Loan Agreement Secured Obligations, the Lender agrees to execute such
documents, agreements and instruments as the Collateral Agent, the Trustee or
any Noteholder may reasonably request to evidence the transfer by subrogation to
any such Person of an interest in the Loan Agreement Secured Obligations
resulting from payments or distributions to the Lender by such Person, so long
as all costs and expenses (including all reasonable legal fees and
disbursements) incurred in connection therewith by the Lender are paid by such
Person upon request for payment thereof.
Section 7.02 FURTHER ASSURANCES. The Parties will, at their own
expense and at any time and from time to time, promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that either Party may reasonably request, in order to
protect any right or interest granted or purported to be granted hereby or to
enable the Lender or the Collateral Agent to exercise and enforce its rights and
remedies hereunder; PROVIDED, HOWEVER, that no Party shall be required to pay
over any payment or distribution, execute any instruments or documents, or take
any other action referred to in this Section 7.02 to the extent that such action
would contravene any law, order or other legal requirement, and in the event of
a controversy or dispute, such Party may interplead any payment or distribution
in any court of competent jurisdiction, without further responsibility in
respect of such payment or distribution under this Section 7.02.
Section 7.03 REPRESENTATIONS. The Original Lender represents and
warrants to the Collateral Agent that it has the requisite power and authority
under the Original Loan Agreement to enter into, execute, deliver, and carry out
the terms of this Agreement. The Collateral Agent represents and warrants that
it has the requisite power and authority under the Indenture to enter into,
execute, deliver, and carry out the terms of this Agreement on behalf of itself,
the Trustee, and the Noteholders.
Section 7.04 AMENDMENTS. No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Party hereto shall be
effective unless it is in a written agreement executed by the Collateral Agent
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and the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7.05 ADDRESSES FOR NOTICES. All demands, notices and other
communications provided for hereunder shall be in writing and, if to the
Collateral Agent, mailed or sent by telecopy or delivered to it, addressed to it
as follows:
The Bank of New York
000 Xxxxxxx Xxxxxx,
Xxxxx 0 Xxxx, Xxx Xxxx, XX 00000
Fax 000-000-0000
and if to the Lender, mailed, sent or delivered thereto, addressed to it as
follows:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx, Esq.
Facsimile: 617-338-2880
or as to any party at such other address as shall be designated by such party in
a written notice to the other parties complying as to delivery with the terms of
this Section 7.05. All such demands, notices and other communications shall be
effective, when mailed two business days after deposit in the mails, postage
prepaid, when sent by telecopy, when receipt is acknowledged by the receiving
telecopy equipment (or at the opening of the next business day if receipt is
after normal business hours), or when delivered, as the case may be, addressed
as aforesaid.
Section 7.06 NO WAIVER, REMEDIES. No failure on the part of any
Party to exercise, and no delay in exercising any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 7.07 CONTINUING AGREEMENT TRANSFER OF SECURED OBLIGATIONS.
This Agreement is a continuing agreement and shall (i) remain in full force and
effect until the Discharge of the Loan Agreement Secured Obligations shall have
occurred and the Indenture Secured Obligations shall have been paid in full,
(ii) be binding upon the Parties and their successors and assigns, and (iii)
inure to the benefit of and be enforceable by the Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), subject to the Lender Loan Documents and the Indenture
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Loan Documents, the Lender or the Collateral Agent, the Trustee, or any
Noteholder may assign or otherwise transfer all or any portion of the Loan
Agreement Secured Obligations or the Indenture Secured Obligations, as
applicable, to any other Person (other than Borrower, any Guarantor or any
Affiliate of Borrower and any Subsidiary of Borrower or any Guarantor), and such
other Person shall thereupon become vested with all the rights and obligations
in respect thereof granted to the Lender or the Collateral Agent, the Trustee,
or any Noteholder, as the case may be, herein or otherwise.
Section 7.08 GOVERNING LAW: ENTIRE AGREEMENT. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York except as otherwise preempted by applicable federal law. This Agreement
constitutes the entire agreement and understanding among the Parties with
respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 7.09 COUNTERPARTS. This Agreement maybe executed in any
number of counterparts, and it is not necessary that the signatures of all
Parties be contained on any one counterpart hereof, each counterpart will be
deemed to be an original, and all together shall constitute one and the same
document.
Section 7.10 NO THIRD PARTY BENEFICIARY. This Agreement is solely
for the benefit of the Parties (and their permitted assignees). No other Person
(including Borrower, any Guarantor or any Affiliate of Borrower and any
Subsidiary of Borrower or any Guarantor) shall be deemed to be a third party
beneficiary of this Agreement.
Section 7.11 HEADINGS. The headings, of the articles and sections of
this Agreement are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions hereof.
Section 7.12 SEVERABILITY. If any of the provisions in this
Agreement shall, for any reason, be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement and shall not invalidate the Lien Priority
or any other priority set forth in this Agreement.
Section 7.13 COLLATERAL AGENT STATUS. Nothing in this Agreement
shall be construed to operate as a waiver by the Collateral Agent, with respect
to the Borrower, any Guarantor, the Trustee, or any Noteholder, of the benefit
of any exculpatory rights, privileges, immunities, indemnities, or reliance
rights contained in the Indenture or any of the other Indenture Loan Documents.
For all purposes of this Agreement, the Collateral Agent may (a) rely in good
faith, as to matters of fact, on any representation of fact believed by the
Collateral Agent to be true (without any duty of investigation) and that is
contained in a written certificate of, any authorized representative of the
Borrower or of the Lender, and (b) assume in good faith (without any duty of
investigation), and rely upon, the genuineness, due authority, validity, and
accuracy of any certificate, instrument, notice, or other document believed by
it in good faith to be genuine and presented by the proper person. Borrower and
Lender expressly acknowledge that the subordination and related agreements set
forth herein by the Collateral Agent are made solely in its capacity as
Collateral Agent under the Indenture with respect to the Notes issued thereunder
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and the other Indenture Loan Documents and are not made by the Collateral Agent
in its individual commercial capacity.
Section 7.14 ACKNOWLEDGMENT. Each of Borrower and each Guarantor
hereby acknowledges that it has received a copy of this Agreement and consents
thereto, and agrees to recognize all rights granted thereby to the Lender and
the Collateral Agent and will not do any act or perform any obligation which is
not in accordance with the agreements set forth in this Agreement. Each of
Borrower and each Guarantor further acknowledges and agrees that it is not an
intended beneficiary or third party beneficiary under this Agreement.
Section 7.15 VENUE; JURY TRIAL WAIVER.
(a) THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN
THE STATE AND FEDERAL COURTS LOCATED IN THE CITY OF NEW YORK OR THE SOUTHERN
DISTRICT OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE LENDER ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PARTY HERETO WAIVES, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 7.15.
(b) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 7.16 INTERCREDITOR AGREEMENT. This Agreement is the
Intercreditor Agreement referred to in the Indenture. If this Agreement or all
of any portion of either Party's rights or obligations hereunder are assigned or
otherwise transferred to any other Person, such other Person shall execute and
deliver an agreement containing terms substantially identical to those contained
in this Agreement.
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IN WITNESS WHEREOF, the Lender, the Collateral Agent, the Borrower
and each Guarantor has caused this Agreement to be duly executed and delivered
as of the date first above written.
LENDER: BANK OF SCOTLAND
individually and as Agent
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
COLLATERAL
AGENT: THE BANK OF NEW YORK
solely in its capacity as Collateral Agent
(and not individually)
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
BORROWER: EMPIRE RESORTS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: CFO
GUARANTORS: ALPHA MONTICELLO, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
ALPHA CASINO MANAGEMENT INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
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MOHAWK MANAGEMENT, LLC
a New York limited liability company
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
MONTICELLO CASINO
MANAGEMENT, LLC
a New York limited liability Company
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
MONTICELLO RACEWAY
DEVELOPMENT COMPANY, LLC
a New York limited liability Company
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
MONTICELLO RACEWAY
MANAGEMENT, INC
a New York corporation
By: /s/ Xxxxxx X. Xxx
-------------------------------------
Name: Xxxxxx X. Xxx
Title: President
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