Common use of Exercise of Remedies Clause in Contracts

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 10 contracts

Sources: Intercreditor Agreement, Intercreditor Agreement, Intercreditor Agreement

Exercise of Remedies. (a) So long as Until the Discharge of Senior Lender Claims First Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company Borrowers or any other Grantor, the Second Priority Agent and the Second Priority Creditors: (i) no Second-Priority Agent or any Second-Priority will not Exercise Any Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought Creditor Remedies with respect to the Common First Priority Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, (including the exercise of any right by the Intercreditor Agent of setoff or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-the Second Priority Agent or any Second-Second Priority Secured Party either Creditor is a party party); (ii) will not contest, protest or may have rights as a third party beneficiary, object to any Exercise of Secured Creditor Remedies or any other exercise by any such party, Exercise of any rights and remedies Unsecured Creditor Remedies relating to the Common First Priority Collateral under the Senior Lender First Priority Loan Documents or otherwise otherwise; and (iii) except as may be permitted in respect of Senior Lender ClaimsSection 3.1(c), or (z) will not object to the forbearance by the Senior Lenders First Priority Agent or the First Priority Creditors from bringing or pursuing any foreclosure proceeding Exercise of Secured Creditor Remedies or action any Exercise of Unsecured Creditor Remedies with respect to the First Priority Collateral; provided that, in the case of (i), (ii) and (iii) above, the Liens on the Collateral granted to secure the Second Priority Obligations of the Second Priority Creditors and the Second Priority Obligations of the Second Priority Creditors shall attach to any proceeds resulting from actions taken by the First Priority Agent or any First Priority Creditor in accordance with this Agreement after application of such proceeds to the extent necessary to meet the requirements of a Discharge of First Priority Obligations. Subject to Section 5.7(b), the First Priority Agent agrees to provide at least ten Business Days’ prior written notice to the Second Priority Agent of its intention to Exercise Any Secured Creditor Remedies; provided, however, that the failure to give any such notice shall not in any way limit its ability to Exercise Any Secured Creditor Remedies to the extent that such Exercise of Secured Creditor Remedies is not otherwise prohibited by the provisions of this Agreement. (i) Until the Discharge of First Priority Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the First Priority Borrower or any other exercise of any rights or remedies relating Grantor, but subject to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided hereinSection 3.1(a)(i), the Intercreditor First Priority Agent and the Senior Lenders First Priority Creditors shall have the exclusive right to enforce rights, exercise remedies Exercise Any Secured Creditor Remedies with respect to the Collateral (including setoff set off and the right to credit bid their debt) and make determinations regarding the release, disposition Disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-the Second Priority Agent or any Second-Second Priority Secured PartyCreditor; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens Lien on the Common Collateral securing the Senior Lender Claims, Second Priority Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the rights relative priorities described in Section 2. In the Exercise of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onSecured Creditor Remedies, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First Priority Agent and the Senior Lenders First Priority Creditors may enforce the provisions of the Senior Lender First Priority Loan Documents and exercise remedies Exercise Any Secured Creditor Remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion, subject to the terms of this Agreement. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or dispositionDisposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction, subject to the terms of this Agreement. (bc) So long as Notwithstanding the foregoing, the Second Priority Agent and any Second Priority Creditor may: (1) file a claim, proof of claim or statement of interest with respect to the Second Priority Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any of the Borrowers or any other Grantor; (2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Priority Obligations, or the rights of the First Priority Agent or the First Priority Creditors to Exercise Any Secured Creditor Remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral; (3) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Creditors, including any claims secured by the Collateral, if any, in each case not in violation of the terms of this Agreement; (4) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not in violation of the terms of this Agreement; (5) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Second Priority Obligations and the Collateral; (6) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Collateral initiated by First Priority Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with the Exercise of Secured Creditor Remedies by First Priority Agent (it being understood that neither the Second Priority Agent nor any Second Priority Creditor shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein); (7) engage consultants, valuation firms, investment bankers, and perform or engage third parties to perform audits, examinations and appraisals of the Collateral for the sole purpose valuing the Collateral and not for the purpose of marketing or conducting a disposition of such Collateral; provided, however, that the Second Priority Agent shall not take any of the foregoing actions if they would materially interfere with the Exercise of Secured Creditor Remedies by the First Priority Agent; (8) the filing and pursuit of a lawsuit against the First Priority Agent and/or any First Priority Creditor for breach or non-performance of any payment obligations pursuant hereto; (9) the imposition of default interest (and interest on interest) under the Second Priority Credit Agreement; and (10) bidding for (including credit bidding in conjunction with a cash bid sufficient to cause a Discharge of First Priority Obligations) and, if such bidding is successful, purchasing Collateral pursuant to a disposition of Collateral that would constitute an Exercise of Secured Creditor Remedies by the First Priority Agent for a cash purchase price in an amount no less than the amount required to cause the Discharge of Senior Lender Claims has not occurred, each Second-First Priority Obligations in full. The Second Priority Agent, on behalf of itself and each applicable Second-the Second Priority Secured PartyCreditors, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoffset-off) with respect to any Common Collateral in respect its capacity as a creditor in violation of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurredthis Agreement. (cd) Subject to Section 3.1(c) and Section 6.3(b): (1) the proviso in clause (ii) of Section 3.1(a), (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-the Second Priority Secured PartyCreditors, agrees that no Second-the Second Priority Agent or any Second-and the Second Priority Secured Party Creditors will not take any action that would hinder any exercise Exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral Secured Creditor Remedies under the Senior First Priority Loan DocumentsDocuments or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition Disposition of the Common Collateral, whether by foreclosure or otherwise, and ; (ii2) each Second-the Second Priority Agent, for itself and on behalf of each applicable Second-the Second Priority Secured PartyCreditors, hereby waives any and all rights it or any Second-the Second Priority Secured Party Creditors may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Priority Agent or the Senior Lenders First Priority Creditors seek to enforce or collect the Senior Lender Claims First Priority Obligations or the Liens on the Collateral securing the First Priority Obligations granted in any of the Senior Lender CollateralFirst Priority Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Priority Agent or Senior Lenders First Priority Creditors is adverse to the interests interest of the Second-Second Priority Secured Parties.Creditors, except to the extent in violation of this Agreement; and (d3) Each Second-the Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Second Priority Collateral Documents or any applicable Second-other Second Priority Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Intercreditor First Priority Agent or the Senior Lenders First Priority Creditors with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender First Priority Collateral Documents. (e) Except as otherwise specifically set forth in Section 3.1(c), the Second Priority Agent and the Second Priority Creditors may exercise rights and remedies as unsecured creditors against the Borrowers or any other Grantor that has guaranteed or granted Liens to secure the Second Priority Obligations in accordance with the terms of the Second Priority Loan Documents and applicable law; provided that in the event that any Second Priority Creditor becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Second Priority Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Priority Obligations) as the other Liens securing the Second Priority Obligations are subject to this Agreement. (f) Except as otherwise set forth herein, nothing in this Agreement shall prohibit the receipt by the Second Priority Agent or any Second Priority Creditors of the required payments of interest, principal and other amounts owed in respect of the Second Priority Obligations, so long as such receipt is not the direct or indirect result of the Exercise of Secured Creditor Remedies (including set off) by the Second Priority Agent or any Second Priority Creditors or enforcement in contravention of this Agreement of any Lien held by any of them. Except as expressly provided in this Agreement, nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Priority Agent or the First Priority Creditors may have with respect to the First Priority Collateral.

Appears in 5 contracts

Sources: Intercreditor Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Intercreditor Agreement (Gener8 Maritime, Inc.)

Exercise of Remedies. (a) So long as the Discharge If, for any Pass Through Trust, an Indenture Event of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect Default under an Indenture relating to any Common Collateral in respect Equipment Certificate that constitutes Trust Property of such Pass Through Trust (an "Event of Default") shall occur and be continuing, then, subject to the provisions of any Intercreditor Agreement, the Pass Through Trustee may vote all of the Equipment Certificates under such Indenture held by such Pass Through Trust, and upon the direction of the Majority In Interest of Certificateholders of the related Series, the Pass Through Trustee shall vote a corresponding majority of such Equipment Certificates in favor of directing the applicable Second-Priority ClaimsRelated Indenture Trustee to declare the unpaid principal of such Equipment Certificates then outstanding, institute any action or proceeding together with respect interest accrued but unpaid thereon and all other amounts due under such Equipment Certificates and the related Indenture, to be due and payable under, and in accordance with the provisions of, such rights or remedies (including any action Indenture. In addition, if such Event of foreclosure)Default shall have occurred and be continuing, (y) contest, protest or object to any foreclosure proceeding or action brought with respect subject to the Common Collateral by provisions of any Intercreditor Agreement, the Intercreditor Agent or any Senior Lender Pass Through Trustee may in respect of accordance with such related Indenture vote such Equipment Certificates to direct the Senior Lender Claims, applicable Related Indenture Trustee regarding the exercise of remedies provided in such Indenture. If, for any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect Pass Through Trust, an Event of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders Default shall have the exclusive right occurred and be continuing, subject to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of any Intercreditor Agreement, the Senior Lender Documents Pass Through Trustee may, and exercise remedies thereunderupon the direction of the Majority In Interest of Certificateholders of the related Series shall, all by such officer or agent as it may appoint, sell, convey, transfer and deliver any Equipment Certificates held in such order and in Pass Through Trust that are subject to the corresponding Indenture Event of Default, without recourse to or warranty by the Pass Through Trustee or any Certificateholder of such manner as they may determine in Series, to any Person. In any such case, the exercise of their sole discretion. Such exercise and enforcement Pass Through Trustee shall include the rights of an agent appointed by them sell, assign, contract to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses and deliver any such Equipment Certificates in connection with such one or more parcels at public or private sale or dispositionsales, at any location or locations at the option of the Pass Through Trustee, all upon such terms and conditions as it may reasonably deem advisable and at such prices as it may reasonably deem advisable, for cash. If the Pass Through Trustee so decides or is required to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code sell or otherwise dispose of any applicable jurisdiction and Equipment Certificates pursuant to this Section 7.01, the Pass Through Trustee shall take such of a secured creditor the actions described above as it may reasonably deem most effective to complete the sale or other disposition of such Equipment Certificates, so as to provide for the payment in full of all amounts due on such Equipment Certificates with respect to the related Series. Notwithstanding the foregoing, any action taken by the Pass Through Trustee under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will this Section 7.01 shall not, in the context reasonable judgment of its role as secured creditorthe Pass Through Trustee, take or receive any Common Collateral or any proceeds be adverse to the best interests of Common Collateral in connection with the Certificateholders of such Series. If an Intercreditor Agreement is applicable and the Pass Through Trustee is the Controlling Party thereunder, the Pass Through Trustee upon the occurrence of an Indenture Event of Default may direct the exercise of any right or remedy (including setoff) with respect to any Common Collateral remedies in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurredconnection therewith. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 4 contracts

Sources: Pass Through Trust Agreement (Federal Express Corp), Pass Through Trust Agreement (Federal Express Corp), Pass Through Trust Agreement (Federal Express Corp)

Exercise of Remedies. (a) So long as neither the Discharge of Senior Lender Claims First Priority Obligations nor the payment in full of the Second Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrowers or any other Grantor, (i) no Second-neither the Collateral Agent nor any of the First Priority Creditors or the Second Priority Creditors will, without the consent of the First Priority Agent, the Second Priority Agent and Collateral Agent, as the case may be, (who shall be entitled but not required, to seek such consents of the First Priority Creditors or any Second-the Second Priority Secured Party will (x) Creditors, as the case may be, as they may be deem necessary or desirable), exercise or seek to exercise any rights or remedies (including setoffincluding, without limitation, set-off) with respect to any Common Pari Passu Collateral Accounts or institute or commence or join with any Person in respect of any applicable Second-Priority Claims, institute commencing any action or proceeding with respect to such rights or remedies remedies; provided that: (including any action of foreclosure), (yI) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Pari Passu Collateral Accounts securing the Senior Lender ClaimsObligations, or the rights of the Intercreditor Agent First Priority Creditors or the Senior Lenders Second Priority Creditors, as the case may be, to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onon the Pari Passu Collateral Accounts; (II) the First Priority Creditors and the Second Priority Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the Common Collateral. In exercising disallowance of the claims of the First Priority Creditors and the Second Priority Creditors, including without limitation any claims secured by the Pari Passu Collateral Accounts, if any, in each case in accordance with the terms of this Agreement; (III) the First Priority Creditors and the Second Priority Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement; and (IV) the First Priority Creditors and remedies the Second Priority Creditors shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Pari Passu Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdictionAccounts. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect Each of the applicable Second-First Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Agent and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-First Priority Loan Document or Second Priority Loan Document, respectively, (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent First Priority Creditors or the Senior Lenders Second Priority Creditors, respectively, with respect to the Senior Lender Pari Passu Collateral Accounts as set forth in this Agreement and the Senior Lender First Priority Loan Documents or Second Priority Loan Documents, respectively.

Appears in 4 contracts

Sources: Intercreditor Agreement (Gener8 Maritime, Inc.), Intercreditor Agreement (Gener8 Maritime, Inc.), Intercreditor Agreement (Gener8 Maritime, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Junior Priority Agent or Representative nor any Second-Junior Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Junior Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Junior Priority Agent Representative or any Second-Junior Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Junior Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Junior Priority Claims and Debt Obligations under its Junior Priority Debt Facility, (B) each Second-any Junior Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Junior Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this Agreement, and (E) from and after the Junior Priority Enforcement Date, the Designated Junior Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Junior Priority AgentRepresentative, on behalf of itself and each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Junior Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Junior Priority Agents Representatives and the Second-Junior Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Junior Priority Claims Debt Obligations pursuant to the Second-Junior Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that no Second-neither such Junior Priority Agent or Representative nor any Second-such Junior Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any Second-such Junior Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Junior Priority Secured Debt Parties. (d) Each Second-Junior Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Junior Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Priority Representative who may be instructed by the Junior Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Junior Priority Representative who may be instructed by the Junior Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Priority Debt Parties or the Junior Priority Debt Obligations.

Appears in 4 contracts

Sources: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.), Term Loan B Credit Agreement (Vine Resources Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrowers or any other Grantor, Loan Party: (i) no Second-Priority the Second Lien Collateral Agent or any Second-Priority and the Second Lien Secured Party will Parties (x) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect (including, without limitation, the exercise of any applicable Second-Priority Claimsright under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second Lien Collateral Agent or any Second Lien Secured Parties is a party or the enforcement of or execution on any judgment Lien) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, that the Second Lien Collateral Agent may exercise any or all such rights (but not rights the exercise of which is otherwise prohibited by this Agreement including, without limitation, Section 6 hereof) after a period (the “Standstill Period”) of 180 consecutive days has elapsed from the date of delivery of written notice to the First Lien Collateral Agent stating that the existence of any Event of Default as defined under the Second Lien Credit Agreement has occurred and is continuing thereunder and stating its intention to exercise its rights to take such actions only so long as (1) no such Event of Default relating to the payment of interest, principal, fees or other First Lien Obligations shall have occurred and be continuing and (2) the First Lien Collateral Agent or First Lien Secured Parties have not commenced (or attempted to commence or given notice of its intent to commence) the exercise of any of their rights or remedies with respect to the Collateral (including seeking relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding); (y) will not contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First Lien Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority First Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by the First Lien Collateral Agent or any such party, First Lien Secured Party of any rights and remedies relating to the Common Collateral under the Senior Lender First Lien Loan Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) will not object to the forbearance by the Senior Lenders First Lien Collateral Agent or the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral Collateral, in respect each case so long as the respective interests of Senior Lender Claims the Second Lien Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2 hereof and (ii) except as otherwise provided herein, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Collateral Agent or any Second-Priority Second Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrowers or any other GrantorLoan Party, each Second-Priority the Second Lien Collateral Agent or the Second Lien Secured Parties may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Second Lien Obligations, (B) the Second Lien Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties, including without limitation any claims secured by the Collateral, if any, in each Secondcase if not otherwise in contravention of the terms of this Agreement, (C) the Second Lien Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Loan Parties arising under either the Bankruptcy Law or applicable non-Priority Agent may take bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement, (D) the Second Lien Secured Parties shall be entitled to file any action (not adverse proof of claim and other filings and make any arguments and motions in order to the prior preserve or protect its Liens on the Common Collateral securing the Senior Lender Claimsthat are, or the rights in each case, not otherwise in contravention of the Intercreditor terms of this Agreement, with respect to the Second Lien Obligations and the Collateral and (E) the Second Lien Collateral Agent or the Senior Lenders to any Second Lien Secured Party may exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) any of its rights in, and perfection and priority or remedies with respect to the Collateral after the termination of its Lien on, the Common CollateralStandstill Period to the extent permitted by clause (i)(x) above. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Secured Parties may enforce the provisions of the Senior Lender First Lien Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 4 contracts

Sources: First Lien Credit Agreement (Emdeon Inc.), Second Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) except as otherwise provided herein, no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent subagent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and and, subject to the terms of this Agreement, make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral, (C) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Second Priority Agent may file any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Party, (D) each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Borrower or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law and (E) each Second Priority Agent and each Second Priority Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor, in each case (A) through (E) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement; provided, further, that, notwithstanding any other provision of this Agreement, but subject at all times to the provisions of Section 4 of this Agreement, each Second Priority Agent and Second Priority Secured Party may enforce or exercise any or all such rights and remedies, or commence, petition or file for any such action or proceeding, (i) after a period ending one hundred eighty (180) days after the date that the First Lien Agent receives written notice from such Second Priority Agent or Second Priority Secured Party that such Second Priority Agent or Second Priority Secured Party has declared, in writing, the existence of any event of default under any of the applicable Second Priority Documents and has accelerated the payment of the full principal amount of the applicable Second Priority Claims and has demanded, in writing, the repayment of such applicable Second Priority Claims from the Borrower and/or any other Grantor, as the case may be, and (ii) if and only if, as of the expiration of such one hundred eighty (180) day period, (A) the applicable event of default set forth in the written notice set forth in the previous clause (i) above is continuing and has not been cured, waived or remedied, and (B) the First Lien Designated Agent is not then diligently pursuing in good faith the exercise of its enforcement rights or remedies against a material portion of the Common Collateral (including, without limitation, any of the following: solicitation of bids from third parties to conduct the liquidation of all or any material portion of the Common Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promotion or selling all or any material portion of the Common Collateral, the notification of account debtors to make payments to the First Lien Designated Agent, the initiation of any action to take possession of all or any material portion of the Common Collateral or the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Common Collateral). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such Subject to the terms of this Agreement, such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or other collateral or any proceeds of Common Collateral or other collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral or other collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in provisos to clause (ii) of Section 3.1(a), the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties with respect to the Common Collateral or any other collateral is to hold a Lien on the Common Collateral or such other collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in provisos to clause (ii) of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Common Collateral or any other collateral under the Senior Loan Lender Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders is adverse to the interests of the Second-Second Priority Secured Parties. (d) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 3 contracts

Sources: Credit Agreement (Aeroways, LLC), Intercreditor Agreement (Aeroways, LLC), Credit Agreement (Cke Restaurants Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First Priority Obligations has not occurred (and, in the case of the Third Priority Representatives or any other Third Priority Secured Party, so long as both the Discharge of First Priority Obligations and the Discharge of Second Priority Obligations has not occurred), whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-none of the Second Priority Agent Representatives or any Second-other Second Priority Secured Party Party, or Third Priority Representatives or any other Third Priority Secured Party, will (xA) initiate any Insolvency or Liquidation Proceeding against any Grantor or any Subsidiary of any Grantor, (B) assert any marshaling, appraisal, valuation or other similar right that may otherwise be available to junior secured creditors, (C) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral, or any other First Priority Collateral or in respect the case of the Third Priority Representative or of any applicable Second-other Third Priority ClaimsSecured Party, institute Second Priority Collateral, or instituting any action or proceeding with respect to such rights or and remedies (including any action of foreclosure), or (yD) contest, protest or object to any foreclosure proceeding or other action brought with respect to the Common Shared Collateral or any other First Priority Collateral or any other property of any Grantor or Subsidiary of any Grantor by the Intercreditor Agent First Priority Representative or any Senior Lender other First Priority Secured Party in respect of the Senior Lender ClaimsFirst Priority Obligations, the exercise of any right by the Intercreditor Agent First Priority Representative or any Senior Lender other First Priority Secured Party (or any agent or sub-agent on their behalfbehalf thereof) in respect of the Senior Lender Claims First Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-the First Priority Agent Representative or any Second-other First Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by the First Priority Representative or any such party, other First Priority Secured Party of any rights and remedies relating to the Common Collateral under the Senior Lender Documents Shared Collateral, of any Grantor or Subsidiary of any Grantor, or otherwise in respect of Senior Lender Claimsthe First Priority Collateral or the First Priority Obligations (each an “Enforcement Action”), or (z) object to the forbearance by the Senior Lenders First Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims First Priority Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent and Designated First Priority Representative on behalf of the Senior Lenders other First Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral or any other First Priority Collateral without any consultation with or the consent of the Second Priority Representative, any Second-other Second Priority Agent Secured Party, the Third Priority Representative or any Second-other Third Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-(x) the Second Priority Agent Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims Obligations in a manner consistent with the terms and conditions of this Agreement and (y) the Third Priority Representative may file a claim, proof of claim or statement of interest with respect to the Third Priority Obligations in a manner consistent with the terms and conditions of this Agreement, (B) each Second-Second Priority Agent Representative and Third Priority Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, First Priority Obligations or the rights of the Intercreditor Agent First Priority Representative or the Senior Lenders other First Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not inconsistent with or prohibited by this Agreement, the Second Priority Representative, the other Second Priority Secured Parties, the Third Priority Representative and the other Third Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided and subject to the restrictions contained in Section 5.04, (D) each Second Priority Representative and Third Priority Representative may exercise the rights and remedies provided for in Section 6.03, and may vote on a proposed plan of reorganization or similar dispositive restructuring plan in any Insolvency or Liquidation Proceeding in accordance with the terms of this Agreement (including Section 6.12), and (E) each Second Priority Representative, the other Second Priority Secured Parties, each Third Priority Representative and the other Third Priority Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Secured Parties and the Third Priority Secured Parties, in accordance with the terms of this Agreement, in each case in the foregoing clauses (A) through (E), to the extent such action is not inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender First Priority Collateral, the Intercreditor Agent and the Senior Lenders Designated First Priority Representative may enforce the provisions of the Senior Lender First Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they it may determine in the exercise of their its sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them the Designated First Priority Representative to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First Priority Obligations has not occurred (and, in the case of the Third Priority Representatives or any other Third Priority Secured Party, so long as both the Discharge of First Priority Obligations and the Discharge of Second Priority Obligations has not occurred), (x) each Second-Second Priority AgentRepresentative, on behalf of itself and each other applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Shared Collateral or any proceeds of Common Collateral Proceeds in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Second Priority Obligations and (y) each Third Priority Representative, on behalf of itself and each other applicable Third Priority Secured Party, agrees that it will not take or receive any Shared Collateral or Proceeds in connection with the exercise of any right or remedy (including setoff or recoupment) with respect of the applicable Second-to any Third Priority ClaimsObligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First Priority Obligations has occurred (and, in the case of the Third Priority Representatives or any other Third Priority Secured Party, unless and until both the Discharge of First Priority Obligations and the Discharge of Second Priority Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), (x) the sole right of the Second-Second Priority Agents Representative and the Second-other Second Priority Secured Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims First Priority Obligations has occurred and (y) the sole right of the Third Priority Representative and the other Third Priority Secured Parties with respect to the Shared Collateral is to hold a Lien on the Shared Collateral in respect of Third Priority Obligations pursuant to the Third Priority Debt Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge of First Priority Obligations and the Discharge of Second Priority Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Each Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-other Second Priority Secured Party, and each Third Priority Representative, for itself and on behalf of each other Third Priority Secured Party, agrees that no Second-Priority Agent or neither it nor any Second-other Second Priority Secured Party or Third Priority Secured Party, respectively, will take any action that would hinder hinder, delay or interfere with any exercise of remedies in respect of the Shared Collateral undertaken by the Intercreditor Agent Designated First Priority Representative or the Senior Lenders with respect to the Common Collateral any other First Priority Secured Party under the Senior Loan First Priority Debt Documents, including any sale, lease, exchange, transfer or other disposition Disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-other Second Priority Secured Party, and each Third Priority Representative, for itself and on behalf of each other Third Priority Secured Party, hereby waives any and all rights it or any Second-other Second Priority Secured Party or Third Priority Secured Party, respectively, may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Designated First Priority Representative or the Senior Lenders any other First Priority Secured Parties seek to enforce or collect the Senior Lender Claims or the Liens granted in on any of the Senior Lender First Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent Designated First Priority Representative or Senior Lenders the other First Priority Secured Party is adverse to the interests of the Second-Second Priority Secured Parties or the Third Priority Secured Parties. (d) Each Second-Second Priority Agent Representative and Third Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document or Third Priority Debt Document, shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent First Priority Representative or the Senior Lenders other First Priority Secured Parties with respect to the Senior Lender First Priority Collateral as set forth in this Agreement or the other First Priority Debt Documents. (e) (i) Until the Discharge of First Priority Obligations, the Designated First Priority Representative (or any Person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral against any Grantor and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto and (ii) after the Discharge of First Priority Obligations and until the Discharge of Second Priority Obligations, the Designated Second Priority Representative (or any Person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral against any Grantor and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto; provided, however, that nothing in this Section shall impair the right of the Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Secured Parties to take such actions with respect to the Shared Collateral after the Discharge of First Priority Obligations; provided further, however, that nothing in this Section shall impair the right of the Third Priority Representative or other agent or trustee acting on behalf of the Third Priority Secured Parties to take such actions with respect to the Shared Collateral after the Discharge of First Priority Obligations and the Senior Lender DocumentsDischarge of Second Priority Obligations has occurred.

Appears in 3 contracts

Sources: Credit Agreement (iHeartMedia, Inc.), Indenture (iHeartMedia, Inc.), Multi Lien Intercreditor Agreement (iHeartMedia, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) any Second Priority Debt Party may vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement, and (F) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the Designated Representative (or any person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative (or any person authorized by it) who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative (or any person authorized by it) who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 3 contracts

Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company a Borrower or any other GrantorPledgor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company a Borrower or any other GrantorPledgor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. , (C) in any Insolvency or Liquidation Proceeding commenced by or against a Borrower or any other Pledgor, each Second Priority Agent may file any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Party, (D) each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of a Borrower or any other Pledgor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law and (E) each Second Priority Agent and each Second Priority Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of a Borrower or any other Pledgor, in each case (A) through (E) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. (b) In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (bc) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or other collateral or any proceeds of Common Collateral or other collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral or other collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties with respect to the Common Collateral or any other collateral is to hold a Lien on the Common Collateral or such other collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (cd) Subject to the proviso in clause (ii) of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders Secured Parties with respect to the Common Collateral or any other collateral under the Senior Loan Lender Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders Secured Parties is adverse to the interests of the Second-Second Priority Secured Parties. (de) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor any First Lien Agent or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents. (f) Until the Discharge of Senior Lender Claims, the First Priority Designated Agent shall have the exclusive right to exercise any right or remedy with respect to the Common Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto.

Appears in 3 contracts

Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, and (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 3 contracts

Sources: Credit Agreement (Virtu Financial, Inc.), Amendment Agreement (MPBP Holdings, Inc.), Credit Agreement (Virtu Financial, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender ABL Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 5.6, (i) no Second-Priority Term Loan Agent or any Second-Priority Secured Party Term Loan Lender will (x) exercise Exercise Any Secured Creditor Remedies or seek to exercise any rights or remedies Exercise Any Secured Creditor Remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of ABL Priority Collateral, or exercise any applicable Second-Priority Claimsright under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common ABL Priority Collateral by the Intercreditor ABL Agent or any Senior ABL Lender in respect of the Senior Lender ABL Priority Claims, the exercise of any right by the Intercreditor ABL Agent or any Senior ABL Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender ABL Priority Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority a Term Loan Agent or any Second-Priority Secured Party Term Loan Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common ABL Priority Collateral under the Senior Lender ABL Loan Documents or otherwise in respect of Senior Lender ABL Priority Claims, or (z) object to the forbearance by the Senior ABL Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise Exercise of any rights or remedies Any Secured Creditor Remedies relating to the Common ABL Priority Collateral in respect of Senior Lender ABL Priority Claims and (ii) except as otherwise provided herein, the Intercreditor ABL Agent and the Senior ABL Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common ABL Priority Collateral without any consultation with or the consent of any Second-Priority Term Loan Agent or any Second-Priority Secured PartyTerm Loan Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority a Term Loan Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Term Loan Claims and (B) each Second-Priority a Term Loan Agent may take any action (not adverse to the prior Liens on the Common ABL Priority Collateral securing the Senior Lender ABL Priority Claims, or the rights of the Intercreditor ABL Agent or the Senior ABL Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common ABL Priority Collateral; provided, further, that a Term Loan Agent or any Term Loan Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which a Term Loan Agent declared the existence of an “Event of Default” under the applicable Term Loan Documents, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all Obligations under the applicable Term Loan Documents, and demanded payment thereof and (ii) the date on which the ABL Agent has received notice thereof from such Term Loan Agent; provided, further, however, that neither any Term Loan Agent nor any other Term Loan Lender shall exercise any rights or remedies with respect to the ABL Priority Collateral if, notwithstanding the expiration of such 180-day period, the ABL Agent or the other ABL Lenders (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the ABL Priority Collateral (prompt written notice of such exercise to be given to the Term Loan Agents), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (the period during which the Term Loan Agents and the Term Loan Lenders may not pursuant to this Section 3.1(a)(ii) exercise any rights, powers, or remedies with respect to the ABL Priority Collateral, the “Term Loan Standstill Period”). In exercising rights and remedies with respect to the Senior Lender ABL Priority Collateral, the Intercreditor ABL Agent and the Senior ABL Lenders may enforce the provisions of the Senior Lender ABL Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common ABL Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Term Loan Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 5.6, (i) neither the ABL Agent nor ABL Lender will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies (including setoff or recoupment) with respect to any Term Loan Priority Collateral, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Term Loan Priority Collateral by a Term Loan Agent or any Term Loan Lender in respect of the Term Loan Claims, the exercise of any right by a Term Loan Agent or any Term Loan Lender (or any agent or sub-agent on their behalf) in respect of the Term Loan Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the ABL Agent or any ABL Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Term Loan Priority Collateral under the Term Loan Documents or otherwise in respect of Term Loan Claims, or (z) object to the forbearance by the Term Loan Lenders from bringing or pursuing any foreclosure proceeding or action or any other Exercise of Any Secured Creditor Remedies relating to the Term Loan Priority Collateral in respect of Term Loan Claims and (ii) except as otherwise provided herein, the Term Loan Agents and the Term Loan Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Term Loan Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the ABL Agent may file a proof of claim or statement of interest with respect to the applicable ABL Priority Claims and (B) the ABL Agent may take any action (not adverse to the prior Liens on the Term Loan Priority Collateral securing the Term Loan Claims, or the rights of the Term Loan Agents or the Term Loan Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Term Loan Priority Collateral; provided, further, that the ABL Agent or any ABL Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which the ABL Agent declared the existence of an “Event of Default” under the applicable ABL Loan Documents, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all ABL Claims under the ABL Credit Agreement, and demanded payment thereof and (ii) the date on which the Term Loan Agents have received notice thereof from the ABL Agent; provided, further, however, that neither the ABL Agent nor any other ABL Lender shall exercise any rights or remedies with respect to the Term Loan Priority Collateral if, notwithstanding the expiration of such 180-day period, the Term Loan Agents or the other Term Loan Lenders (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the Term Loan Priority Collateral (prompt written notice of such exercise to be given to the ABL Agent), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (the period during which the ABL Agent and the ABL Lenders may not pursuant to this Section 3.1(b)(ii) exercise any rights, powers, or remedies with respect to the ABL Priority Collateral, the “ABL Standstill Period”). In exercising rights and remedies with respect to the Term Loan Priority Collateral, the Term Loan Agents and the Term Loan Lenders may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion consistent with the terms of the Term Loan Documents. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (c) So long as the Discharge of ABL Priority Claims has not occurred, each Second-Priority Term Loan Agent, on behalf of itself and each applicable Second-Priority Secured PartyTerm Loan Lender, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common ABL Priority Collateral or any proceeds of Common ABL Priority Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-ABL Priority ClaimsCollateral. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender ABL Priority Claims has occurred, except as expressly provided in the proviso provisos in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents each Term Loan Agent and the Second-Priority Secured Parties Term Loan Lenders with respect to the Common ABL Priority Collateral is to hold a Lien on the Common ABL Priority Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Term Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender ABL Priority Claims has occurred. So long as the Discharge of Term Loan Claims has not occurred, the ABL Agent, on behalf of itself and each applicable ABL Lender, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Term Loan Priority Collateral. Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan Claims has occurred, except as expressly provided in the provisos in clause (ii) of Section 3.1(b), the sole right of the ABL Agent and the ABL Lenders with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Loan Claims has occurred. (cd) Subject to the proviso provisos in clause (ii) of Section 3.1(a)) above and Section 5.6, (i) each Second-Priority Term Loan Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan Lender, agrees that no Second-Priority Agent or any Second-Priority Secured Party the Term Loan Agents and the Term Loan Lenders will not take any action that would hinder any exercise Exercise of remedies Any Secured Creditor Remedies undertaken by the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Common ABL Priority Collateral under the Senior ABL Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common ABL Priority Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Term Loan Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan Lender, hereby waives any and all rights it or any Second-Priority Secured Party such Term Loan Lender may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor ABL Agent or the Senior ABL Lenders seek to enforce or collect the Senior Lender ABL Priority Claims with respect to the ABL Priority Collateral or the Liens granted in any of the Senior Lender ABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor ABL Agent or Senior ABL Lenders is adverse to the interests of the Second-Term Loan Lenders. Subject to the provisos in clause (ii) of Section 3.1(b) above and Section 5.6, (i) the ABL Agent, for itself and on behalf of each applicable ABL Lender, agrees that the ABL Agent and the ABL Lenders will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by any Term Loan Agent or the Term Loan Lenders with respect to the Term Loan Priority Secured PartiesCollateral under the Term Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, and (ii) the ABL Agent, for itself and on behalf of each applicable ABL Lender, hereby waives any and all rights it or any ABL Lender may have as a junior lien creditor or otherwise to object to the manner in which the Term Loan Agents or the Term Loan Lenders seek to enforce or collect the Term Loan Claims with respect to the Term Loan Priority Collateral or the Liens granted in any of the Term Loan Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Term Loan Agents or Term Loan Lenders is adverse to the interests of the Term Loan Lenders. (de) Each Second-Priority Term Loan Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Term Loan Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Senior Lender ABL Priority Collateral as set forth in this Agreement and the Senior Lender ABL Loan Documents. The ABL Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable ABL Loan Document shall be deemed to restrict in any way the rights and remedies of the Term Loan Agents or the Term Loan Lenders with respect to the Term Loan Priority Collateral as set forth in this Agreement and the Term Loan Documents.

Appears in 3 contracts

Sources: Intercreditor Agreement (AZEK Co Inc.), Intercreditor Agreement (CPG Newco LLC), Intercreditor Agreement (CPG Newco LLC)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, : (i) no the Second-Priority Lien Collateral Agent or any and the other Second-Priority Secured Party will Lien Creditors (x) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Priority Claims(including, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claimswithout limitation, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any the Second-Priority Lien Collateral Agent or any Second-Priority Secured Party either Lien Creditor is a party party) or may have institute or commence, or join with any Person in commencing, any action or proceeding with respect to such rights as a third party beneficiaryor remedies with respect to any Shared Collateral (including any action of foreclosure, enforcement, collection or execution), (y) will not contest, protest or object to any foreclosure proceeding or action brought by the First-Lien Collateral Agent or any other First-Lien Creditor or any other exercise by the First-Lien Collateral Agent or any such party, other First-Lien Creditor of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender ClaimsShared Collateral, or and (z) will not object to the forbearance by the Senior Lenders First-Lien Collateral Agent or the other First-Lien Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Shared Collateral; and (ii) except as otherwise provided hereinthe First-Lien Collateral Agent shall have the exclusive right, the Intercreditor Agent and the Senior Lenders Required First-Lien Creditors shall have the exclusive right to instruct the First-Lien Collateral Agent, to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Shared Collateral without any consultation with with, or the consent of any of, the Second-Priority Lien Collateral Agent or any other Second-Priority Secured PartyLien Creditor, all as though the Second-Lien Obligations did not exist; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each the Second-Priority Lien Collateral Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and Lien Obligations, (B) each the Second-Priority Lien Collateral Agent may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender ClaimsFirst-Lien Obligations, or the rights of the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onon the Shared Collateral in accordance with the terms of this Agreement and (C) the Second-Lien Creditors shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the Common disallowance of the claims of the Second-Lien Creditors, including any claim secured by the Shared Collateral, if any, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Shared Collateral, the Intercreditor First-Lien Collateral Agent and the Senior Lenders other First-Lien Creditors may enforce the provisions of the Senior Lender First-Lien Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 3 contracts

Sources: Intercreditor Agreement (Trico Marine Services Inc), Intercreditor Agreement (Trico Marine Services Inc), Intercreditor Agreement (Trico Marine Services Inc)

Exercise of Remedies. (a) The provisions of this clause (a) are subject to clause (e) below in this Section 3.1. So long as the Discharge of Senior Lender Claims First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, : (i) no the Second-Priority Lien Agent or any and the other Second-Priority Lien Secured Party Parties will (x) not exercise or seek to exercise any rights or remedies (including setoffset-off) with respect to any Common Collateral in respect of any applicable (whether available under the Second-Priority ClaimsLien Loan Documents, institute pursuant to applicable law or otherwise, including, without limitation, foreclosing on the Liens of such Person in any action Collateral, selling or proceeding with respect to such rights or remedies (including realizing on any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender ClaimsCollateral, taking possession of Collateral (unless solely for purposes of perfecting Liens on such Collateral), the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any the Second-Priority Lien Agent or any Second-Priority Lien Secured Party either is a party party, the exercise of voting rights or may have other rights as a third party beneficiaryand remedies pertaining to pledged equity interests and the contacting of account debtors for payment in respect of accounts receivable owing to any Grantor) or institute or commence, or join with any Person in instituting or commencing, any action or proceeding with respect to any such rights or remedies (including any action of foreclosure, enforcement, collection or execution and any Insolvency or Liquidation Proceeding), and will not contest, protest or object to any foreclosure proceeding or any other action brought by the First-Lien Agent or any other First-Lien Secured Party on account of or in respect of the Collateral or any other exercise by the First-Lien Agent or any such party, other First-Lien Secured Party of any rights and remedies (whether of a kind described above or otherwise) relating to the Common Collateral Collateral, whether available under the Senior Lender Documents First-Lien Documents, pursuant to applicable law or otherwise in respect (including the institution of Senior Lender Claimsany Insolvency or Liquidation Proceeding), or (z) object to the forbearance by the Senior Lenders First-Lien Agent or the other First-Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Collateral; and (ii) except as otherwise provided hereinthe First-Lien Agent shall have the exclusive right, the Intercreditor Agent and the Senior Lenders Required First-Lien Secured Parties shall have the exclusive right to instruct the First-Lien Agent, to enforce rights, exercise remedies (whether available under the First-Lien Documents, pursuant to applicable law or otherwise, including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any the Second-Priority Lien Agent or any other Second-Priority Lien Secured Party, all as though the Second-Lien Obligations did not exist; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each the Second-Priority Lien Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and Lien Obligations, (B) each the Second-Priority Lien Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Lien Obligations, or the rights of the Intercreditor First-Lien Agent or the Senior Lenders other First-Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onon the Collateral in accordance with the terms of this Agreement, (C) the Second-Lien Secured Parties shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second-Lien Secured Parties, including any claim secured by the Collateral, if any, in each case in accordance with the terms of this Agreement, (D) the Second-Lien Secured Parties may file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement and only with respect to the portion of their claim that is unsecured and (E) the Second-Lien Secured Parties may vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with, or not violative of, the Common terms of this Agreement with respect to the Second-Lien Obligations and the Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First-Lien Agent and the Senior Lenders other First-Lien Secured Parties may enforce the provisions of the Senior Lender First-Lien Documents and exercise remedies thereunderthereunder and under applicable law, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction or other applicable law and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each The Second-Priority Lien Agent, on behalf of itself and each applicable the Second-Priority Lien Secured PartyParties, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral (whether available under the Second-Lien Loan Documents, applicable law or otherwise, including, without limitation, all rights and remedies of a kind described in respect Section 3.1(a) above), and shall not hold possessory Liens on all or any part of the applicable SecondCollateral (such possessory Liens to be held by First-Priority ClaimsLien Agent, subject to the terms of Section 5.5 hereof), unless and until the Discharge of First-Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First-Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Lien Agent and the other Second-Priority Lien Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Lien Collateral Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims the First-Lien Obligations has occurredoccurred in accordance with the terms of the Second-Lien Loan Documents and applicable law. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each The Second-Priority Lien Agent, for itself and on behalf of each applicable the Second-Priority Lien Secured PartyParties, and each other Second-Lien Secured Party (by its acceptance of the benefits of the Second-Lien Loan Documents), (i) agrees that no the Second-Priority Lien Agent or any and the other Second-Priority Lien Secured Party Parties will not take any action that would hinder hinder, delay, limit or prohibit any exercise of rights or remedies undertaken by the Intercreditor First-Lien Agent or the Senior Lenders First-Lien Secured Parties with respect to all or any part of the Common Collateral (whether available under the Senior Loan First-Lien Documents, applicable law or otherwise), including any collection, sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or Collateral Document or subordinate the priority of the First-Lien Obligations to the Second-Lien Obligations or grant the Liens securing the Second-Lien Obligations equal ranking to the Liens securing the First-Lien Obligations and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any the Second-Priority Lien Secured Party Parties may have as a junior lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the Intercreditor First-Lien Agent or the Senior Lenders other First-Lien Secured Parties seek to enforce or collect the Senior Lender Claims First-Lien Obligations or the Liens granted in any of the Senior Lender First-Lien Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First-Lien Agent or Senior Lenders First-Lien Secured Parties is adverse to the interests interest of the Second-Priority Lien Secured Parties. (d) Each The Second-Priority Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable the Second-Priority Lien Collateral Documents or any other Second-Lien Loan Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First-Lien Agent or the Senior Lenders other First-Lien Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender First-Lien Loan Documents. (e) Notwithstanding anything to the contrary in preceding clauses (a) through (d) of this Section 3.1, at any time while an “event of default” exists under (and as defined in) the Second-Lien Credit Agreement, then so long as 180 days have elapsed after written notice thereof (and requesting that enforcement action be taken with respect to the Collateral) has been received by the First-Lien Agent from the Second-Lien Agent and so long as the respective “event of default” shall not have been cured or waived (or any acceleration in respect thereof rescinded), the Second-Lien Agent, for itself and on behalf of the Second-Lien Secured Parties, may, but only if the First-Lien Agent or the First-Lien Secured Parties are not pursuing in good faith enforcement proceedings, or otherwise exercising rights and remedies (including, without limitation, the solicitation of bids from third parties to conduct the liquidation of all or any portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any portion of the Collateral, the notification of account debtors to make payments to the First-Lien Agent or its agents, the initiation of any action to take possession of all or any portion of the Collateral, the commencement of any legal proceedings or actions against or with respect to the foreclosure and sale of all or any portion of the Collateral, diligently attempting in good faith to vacate any stay prohibiting an enforcement action with respect to all or any portion of the Collateral or diligently attempting in good faith to vacate any stay prohibiting an enforcement action with respect to the Collateral), with respect to all or any portion of the Collateral in a commercially reasonable manner (with any determination of which Collateral to proceed against, and in what order, to be made by the First-Lien Agent or such First-Lien Secured Parties in their reasonable judgment), enforce the Liens on Collateral granted pursuant to the Second-Lien Collateral Documents, provided that (x) any Collateral or any proceeds of Collateral received by the Second-Lien Agent or such other Second-Lien Secured Party, as the case may be, in connection with the enforcement of such Lien shall be applied in accordance with Section 4 hereof and (y) the First-Lien Agent or any other First-Lien Secured Parties may at any time take over such enforcement proceedings, provided that the First-Lien Agent or such First-Lien Secured Parties, as the case may be, pursue enforcement proceedings, or otherwise exercise rights and remedies (including, without limitation, the solicitation of bids from third parties to conduct the liquidation of all or any portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any portion of the Collateral, the notification of account debtors to make payments to the First-Lien Agent or its agents, the initiation of any action to take possession of all or any portion of the Collateral, the commencement of any legal proceedings or actions against or with respect to the foreclosure and sale of all or any portion of the Collateral, diligently attempting in good faith to vacate any stay prohibiting an enforcement action with respect to all or any portion of the Collateral or diligently attempting in good faith to vacate any stay prohibiting an enforcement action with respect to the Collateral), with respect to all or any portion of the Collateral in a commercially reasonable manner, with any determination of which Collateral to proceed against, and in what order, to be made by the First-Lien Agent or such First-Lien Secured Parties in their reasonable judgment, and provided further that the Second-Lien Agent or Second-Lien Secured Parties, as the case may be, shall only be able to recoup (from amounts realized by the First-Lien Agent or any First-Lien Secured Parties) in any enforcement proceeding with respect to the Collateral (whether initiated by the First-Lien Agent or First-Lien Secured Parties or taken over by them as contemplated above) any expenses incurred by them in accordance with the priorities set forth in Section 4 hereof.

Appears in 3 contracts

Sources: First Lien Credit Agreement (GSE Holding, Inc.), Second Lien Credit Agreement (GSE Holding, Inc.), Intercreditor Agreement (GSE Holding, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First-Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent Representative or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsObligations, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First-Priority Collateral Agent or any Senior Lender First-Priority Secured Party in respect of the Senior Lender ClaimsFirst-Priority Obligations, the exercise of any right by the Intercreditor First-Priority Collateral Agent or any Senior Lender First-Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims First-Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Representative or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Priority Documents or otherwise in respect of Senior Lender ClaimsFirst-Priority Obligations, or (z) object to the forbearance by the Senior Lenders First-Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims First-Priority Obligations and (ii) except as otherwise provided herein, the Intercreditor First-Priority Collateral Agent and the Senior Lenders First-Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent Representative or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Priority Claims Obligations and (B) each Second-Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Priority Obligations, or the rights of the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender First-Priority Collateral, the Intercreditor First-Priority Collateral Agent and the Senior Lenders First-Priority Secured Parties may enforce the provisions of the Senior Lender First-Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First-Priority Obligations has not occurred, each Second-Priority AgentRepresentative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role capacity as secured creditora Secured Party, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority ClaimsObligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First-Priority Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Priority Agents Representatives and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims Obligations pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims First-Priority Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Priority AgentRepresentative, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent Representative or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties with respect to the Common Collateral under the Senior Loan First-Priority Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority AgentRepresentative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties seek to enforce or collect the Senior Lender Claims First-Priority Obligations or the Liens granted in any of the Senior Lender First-Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First-Priority Collateral Agent or Senior Lenders First-Priority Secured Parties is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties with respect to the Senior Lender First-Priority Collateral as set forth in this Agreement and the Senior Lender First-Priority Documents. (e) Subject to the proviso appearing in the first sentence of Section 3.01(a) and the following Section 3.01(f), until the Discharge of the First-Priority Obligations, the First-Priority Collateral Agent shall have the exclusive right to exercise any right or remedy with respect to the Common Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. (f) Notwithstanding the provisions of Section 3.01 above but subject in all cases to Section 4.02, the Second-Priority Collateral Agent may enforce any of its rights and exercise any of its remedies (subject to the limitations set forth in this clause (f) with respect to such actions) with respect to the Second Lien Collateral after a period of 180 consecutive days has elapsed since the date on which the Second-Priority Collateral Agent has delivered to the First-Priority Collateral Agent written notice of the acceleration or non-payment at the final stated maturity of the Indebtedness then outstanding under any Second Lien Documents (the “Standstill Period”); provided, however, that (i) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Second-Priority Collateral Agent or any other Second-Priority Secured Party enforce or exercise any rights or remedies with respect to any Common Collateral if the First-Priority Collateral Agent or any other First-Priority Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from or modification of the automatic stay or any other stay in any insolvency or liquidation proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to all or a material portion of such Collateral (prompt written notice thereof to be given to the Second-Priority Collateral Agent by the applicable First-Priority Representative) and (ii) after the expiration of the Standstill Period, so long as no First-Priority Representative has commenced any action to enforce the Liens securing the First-Priority Obligations on all or any material portion of the Collateral, the Second-Priority Secured Parties (or the Second-Priority Collateral Agent on their behalf) may, subject to the provisions of Article 7, enforce the Liens securing the Second-Priority Obligations with respect to all or any portion of the Common Collateral to the extent permitted hereunder. If the Second-Priority Collateral Agent or any other Second-Priority Secured Party exercises any rights or remedies with respect to the Collateral in accordance with the immediately preceding sentence of this paragraph and thereafter the First-Priority Collateral Agent or any other First-Priority Secured Party commences (or attempts to commence or give notice of its intent to commence) the exercise of any of its rights or remedies with respect to the Collateral (including seeking relief from the automatic stay or any other stay in any proceeding under Bankruptcy Law), the Standstill Period shall recommence and the Second-Priority Collateral Agent and each other Second-Priority Secured Party shall rescind any such rights or remedies already exercised with respect to the Common Collateral.

Appears in 3 contracts

Sources: Supplemental Indenture, Credit Agreement (Windstream Holdings, Inc.), Supplemental Indenture (Windstream Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company a Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company a Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) any Second Priority Debt Party may vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement, and (F) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding, in each case (A) through (E) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the Designated Senior Representative (or any person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative (or any person authorized by it) who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative (or any person authorized by it) who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 3 contracts

Sources: First Lien/Second Lien Intercreditor Agreement, First Lien/Second Lien Intercreditor Agreement (BrightView Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (BrightView Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company a Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company a Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) any Second Priority Debt Party may vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement, and (F) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding, in each case (A) through (E) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the Designated Senior Representative (or any person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative (or any person authorized by it) who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Second Priority Collateral, and the Designated Second Priority Representative (or any person authorized by it) who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Second Priority Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Second Priority Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 3 contracts

Sources: First Lien/Second Lien Intercreditor Agreement (National Vision Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (National Vision Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (National Vision Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with this Agreement, any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Debt Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) any Second Priority Debt Party may vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement, and (F) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to any or all of the Shared Collateral or (2) the Grantor which has granted a security interest in any Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding, in each case (A) through (E) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Focus Financial Partners Inc.), First Lien Credit Agreement (Focus Financial Partners Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Holdings, the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Senior Collateral Agent, any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Senior Collateral Agent, any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Collateral Agent, any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Collateral Agent, any Senior Representative or any Senior Secured Party from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Collateral Agent, the Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that the Designated Second Priority Representative may exercise any or all of such rights after the passage of a period of 180 days from the date of delivery to the Senior Collateral Agent of a written notice of the acceleration of the Second Priority Debt Obligations unless the Senior Collateral Agent is at such time diligently exercising its rights and remedies with respect to the Shared Collateral; provided further however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against Holdings, the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Collateral Agent, the Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) the Second Priority Representative and any Second Priority Debt Party may exercise their rights and remedies as unsecured creditors to the extent not inconsistent with this Agreement and as provided in Section 5.03, and (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.04. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Collateral Agent, the Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Trinet Group Inc), Second Lien Credit Agreement (Trinet Group Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or neither any Second-Priority Junior Representative nor any Junior Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Priority ClaimsJunior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Designated Senior Representative, any Second-Priority Agent other Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Priority Agent Junior Representative or any Second-Priority Junior Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent any Junior Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Priority Claims and Junior Obligations under its Junior Debt Facility, (B) each Second-Priority Agent any Junior Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with or prohibited by this Agreement, any Junior Representative and the Junior Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) any Junior Representative may exercise the rights and remedies provided for in Section 6.03 and may vote on a proposed Plan of Reorganization in any Insolvency or Liquidation Proceeding of the Company or any other Grantor in accordance with the terms of this Agreement (including Section 6.12), (E) any Junior Representative and the Junior Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Secured Parties, including any claims secured by the Junior Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Junior Enforcement Date, the Designated Junior Representative or any person authorized by it may exercise or seek to exercise any rights or remedies with respect to any Shared Collateral in respect of any Junior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), in each case of clauses (A) through (F) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Priority AgentJunior Representative, on behalf of itself and each applicable Second-Priority Junior Secured PartyParty under its Junior Debt Facility, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Priority ClaimsJunior Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (iiSection 3.01(a) of Section 3.1(a)and in Article VI, the sole right of the Second-Priority Agents Junior Representatives and the Second-Priority Junior Secured Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Priority Claims Junior Obligations pursuant to the Second-Priority Documents, as applicable, Junior Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Priority AgentJunior Representative, for itself and on behalf of each applicable Second-Priority Junior Secured PartyParty under its Junior Debt Facility, agrees that no Second-Priority Agent or neither such Junior Representative nor any Second-Priority such Junior Secured Party will take any action that would hinder or delay any exercise of remedies undertaken by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority AgentJunior Representative, for itself and on behalf of each applicable Second-Priority Junior Secured PartyParty under its Junior Debt Facility, hereby waives any and all rights it or any Second-Priority such Junior Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Priority Junior Secured Parties. (d) Each Second-Priority Agent Junior Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Junior Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to the proviso in Section 3.01(a), until the Discharge of Senior Obligations, the Designated Senior Representative or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Representative or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Collateral and shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Secured Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Representatives, or for the taking of any other action authorized by the Junior Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Junior Representative or other agent or trustee acting on behalf of the Junior Secured Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Secured Parties or the Junior Obligations. (f) Notwithstanding anything to the contrary herein, the Liens on Shared Collateral securing the Exchangeable Notes Obligations shall only be subordinated pursuant to this Agreement to the Liens on Shared Collateral securing the Senior Exchangeable Notes Obligations and the Senior Notes Obligations, and the rights of the Senior Exchangeable Notes Secured Parties and Senior Notes Secured Parties hereunder with respect to the Shared Collateral and the proceeds thereof shall only be enforceable as against the Exchangeable Notes Secured Parties, in each case to the fullest extent permitted under the Exchangeable Notes Indenture. Without limiting the foregoing, in the event the Shared Collateral securing the Exchangeable Notes Obligations is determined, contrary to the intent and expectation of the parties, to constitute all or substantially all (within the meaning of the Exchangeable Notes Indenture) of the collateral that secures the Exchangeable Notes Obligations (the “Exchangeable Notes Collateral”), the Shared Collateral hereunder shall, only insofar as it relates to the Liens on the Shared Collateral securing the Senior Exchangeable Notes Obligations and the Senior Notes Obligations, be limited to the maximum amount that would not constitute all or substantially all of the Exchangeable Notes Collateral. For the avoidance of doubt, nothing in this subsection shall limit any rights under this Agreement of the Senior Credit Agreement Secured Parties.

Appears in 2 contracts

Sources: First Lien/Second Lien Intercreditor Agreement (Amc Entertainment Holdings, Inc.), Credit Agreement (Amc Entertainment Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Senior Collateral Agent, any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Senior Collateral Agent, any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Collateral Agent, any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Collateral Agent, the Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Parent Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and (B) each Second-Debt Obligations under its Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.Debt Facility,

Appears in 2 contracts

Sources: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, and (E) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: Credit Agreement (Red Lion Hotels CORP), Credit Agreement (Hilton Grand Vacations Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Senior Collateral Agent, any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Senior Collateral Agent, any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Collateral Agent, any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Collateral Agent, the Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Parent Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and (B) each Second-Debt Obligations under its Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.Debt Facility,

Appears in 2 contracts

Sources: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding Event has been commenced by or against the Company or any other Grantoroccurred, (i) no Second-Priority Agent or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral Security Property in respect of any applicable Second-Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral Security Property by the Intercreditor Agent or any Senior Lender Secured Party in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral Security Property under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral Security Property in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral Security Property without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral Security Property securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralSecurity Property. In exercising rights and remedies with respect to the Senior Lender CollateralSecurity Property, the Intercreditor Agent and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondetermine. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral Security Property upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code applicable law of any applicable jurisdiction and of a secured creditor under any Bankruptcy Laws of any applicable jurisdictionLaw. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral Security Property or any proceeds of Common Collateral Security Property in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral Security Property in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral Security Property is to hold a Lien on the Common Collateral Security Property in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders Secured Parties with respect to the Common Collateral Security Property under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralSecurity Property, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender CollateralSecurity Property, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders Secured Parties is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent Agent, for itself and on behalf of each Second-Priority Secured Party, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral Security Property as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Lien Subordination and Intercreditor Agreement, Lien Subordination and Intercreditor Agreement (Petroquest Energy Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Company, any Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure or other enforcement proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter letter, if applicable, or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure or other enforcement proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations, and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff or recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Second Priority Representative or any other Grantor, each Second-Second Priority Agent Debt Party may file exercise any or all such rights after the passage of a claim or statement period of interest with respect 180 days from the date of delivery of a notice in writing to the applicable Second-Designated Senior Representative of such Second Priority Claims and (B) each Second-Representative’s or Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders Debt Party’s intention to exercise remedies in respect thereof) in order its right to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in take such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.actions,

Appears in 2 contracts

Sources: Indenture, Indenture

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, even if an event of default has occurred and remains uncured under the Parity Lien Collateral Documents, and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or any Second-Priority Secured Party representative for Parity Lien Debt and the Noteholders, agrees that neither it nor they will (x) exercise or seek to exercise any rights or remedies as a secured creditor (including setoffset-off) with respect to any Common Collateral in respect on account of any applicable Second-Priority Parity Lien Claims, institute any action or proceeding with respect to such rights the Common Collateral, or exercise any remedies against the Common Collateral (including any action of foreclosure), (y) or contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First-Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the any exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Trustee, any Second-Priority other agent, trustee or representative for Parity Lien Debt, the Parity Lien Collateral Agent or any Second-Priority Secured Party either Noteholder is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such party, of any rights and remedies as a secured creditor relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by or on behalf of the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Claims, and (ii) except as otherwise provided herein, the Intercreditor First-Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the sale, release, disposition disposition, or restrictions with respect to the Common Collateral as a secured creditor without any consultation with or the consent of any Second-Priority the Trustee, the Parity Lien Collateral Agent or any Second-Priority Secured PartyNoteholder; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, the Company Parity Lien Collateral Agent, the Trustee, any other agent, trustee or representative for Parity Lien Debt or any other Grantor, each Second-Priority Agent Noteholder may file a claim or statement of interest or proof of claim with respect to the applicable Second-Priority Claims and Parity Lien Claims, (B) each Secondto the extent it (i) would not prevent, restrict or otherwise limit any rights granted or created hereunder or under any Senior Lender Collateral Documents in favor of the First-Priority Lien Agent or any other Senior Lender in respect of the Common Collateral or (ii) is not otherwise inconsistent with the terms of this Agreement, the Parity Lien Collateral Agent, the Trustee, any other agent, trustee or representative for Parity Lien Debt or any Noteholder may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Claims in order to createpreserve, prove, perfect, preserve perfect or protect (but not enforce) its rights in, the validity and perfection and priority enforceability of its Lien on, Liens in the Common Collateral, (C) to the extent it would not prevent, restrict or otherwise limit any rights granted or created hereunder or under any Senior Lender Collateral Documents in favor of the First-Lien Agent or any other Senior Lender in respect of the Common Collateral, the Parity Lien Collateral Agent, the Trustee, any other agent, trustee or representative for Parity Lien Debt or any Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleadings made by any person objecting to or otherwise seeking the disallowance of the Parity Lien Claims, including without limitation any claims secured by the Common Collateral, if any, in each case in accordance with the terms of this Agreement, or (D) the Parity Lien Collateral Agent, the Trustee, any other agent, trustee or representative for Parity Lien Debt or any Noteholder shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor First-Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to cause the Grantors to deliver a transfer document in lieu of foreclosure to the Senior Lenders or any nominee of the Senior Lenders, to incur reasonable expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a mortgagee in any applicable jurisdiction and a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as . Upon the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Parity Lien Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Partythe Trustee, agrees that no Second-Priority Agent any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not be required to release their claims on any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor that has not been sold or otherwise to object to disposed of in connection with the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Discharge of Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured PartiesClaims. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Indenture (Century Aluminum Co), Indenture (Century Aluminum Co)

Exercise of Remedies. Without limiting the provisions of Section 2.5: (a) So long as the Discharge of Senior Lender Claims First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent or any other Grantor, : (i) no the Second-Priority Lien Agent or any and the other Second-Priority Secured Party Lien Claimholders will (x) not exercise or seek to exercise any rights or remedies (including setoff) as a secured creditor with respect to any Common Collateral in respect of any applicable Second-Priority Claims(including, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claimswithout limitation, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any the Second-Priority Lien Agent or any Second-Priority Secured Party either Lien Claimholder is a party or may have holds a perfected interest through the Control Agent) or institute or commence, or join with any Person in commencing, any action or proceeding against the Parent or any other Grantor with respect to such rights as a third party beneficiaryor remedies (including any action of foreclosure, enforcement, collection or execution), and will not contest, protest, seek to enjoin or object to any foreclosure proceeding or action brought by the First-Lien Agent or any other First-Lien Creditor or any other exercise by the First-Lien Agent or any such partyother First-Lien Creditor, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Lien Credit Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) contest, protest, seek to enjoin or object to the forbearance by the Senior Lenders First-Lien Agent or the other First-Lien Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Collateral; and (ii) except as otherwise provided herein, the Intercreditor First-Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any the Second-Priority Lien Agent or any other Second-Priority Secured PartyLien Claimholder; provided, howeverthat, that (A) subject to Section 2.5(c), in any Insolvency or Liquidation Proceeding commenced by or against the Company Parent or any other Grantor, each the Second-Priority Lien Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Lien Obligations, (B) each the Second-Priority Lien Agent may take any action (not adverse to the prior priority of the First-Lien Obligations and Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Lien Obligations, or the rights rights, remedies and claims of the Intercreditor First-Lien Agent or the Senior Lenders to exercise remedies in respect thereofother First-Lien Creditors) in order to createpreserve, prove, perfect, preserve perfect or protect (but not enforce) its Lien on the Collateral in a manner not otherwise inconsistent with the terms of this Agreement, (C) the Second-Lien Claimholders shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second-Lien Claimholders, including any claim secured by the Collateral, if any, in each case in a manner not otherwise inconsistent with the terms of this Agreement and not adverse to the priority of the First-Lien Obligations and Liens on the Collateral securing the First-Lien Obligations or the rights, remedies and claims of the First-Lien Agent or other First-Lien Creditor, (D) the Second-Lien Claimholders shall be entitled to file any pleadings, objections, motions or agreements which assert rights inor interests available to unsecured creditors of the Grantors arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case subject to the terms of this Agreement (including, without limitation, Sections 2.5 and 5.4 hereof) and in accordance with the terms of this Agreement, (E) the Second-Lien Claimholders shall be entitled to join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by First-Lien Agent, to the extent that such action could not reasonably be expected to interfere materially with such foreclosure or proceeding, but no Second-Lien Claimholder may receive any proceeds thereof unless expressly permitted herein, and perfection and priority (E) the Second-Lien Claimholders shall be entitled to bid for or purchase Collateral at any public, private, or judicial foreclosure upon such Collateral initiated by any First-Lien Creditor, or any sale of its Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second-Lien on, Obligations unless the Common Collateralproceeds of such bid are otherwise sufficient to cause the Discharge of First-Lien Obligations. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First-Lien Agent and the Senior Lenders other First-Lien Creditors may enforce the provisions of the Senior Lender First-Lien Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Senior Secured Convertible Promissory Note Purchase Agreement (Kior Inc), Subordination Agreement (Kior Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or other action brought with respect to the Common Shared Collateral or any other Senior Priority Collateral by the Intercreditor Agent any Senior Priority Representative or any Senior Lender Priority Secured Party in respect of the Senior Lender ClaimsPriority Obligations, the exercise of any right by the Intercreditor Agent any Senior Priority Representative or any Senior Lender Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Senior Priority Agent Representative or any Second-Senior Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Priority Debt Documents or otherwise in respect of the Senior Lender ClaimsPriority Collateral or the Senior Priority Obligations, or (z) object to the forbearance by the Senior Lenders Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Priority Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Priority Representatives and the Senior Lenders Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral or any other Senior Priority Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against Holdings, the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Priority Obligations or the rights of the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03, (E) any Second Priority Representative and the Second Priority Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Second Priority Enforcement Date, the Major Second Priority Representative (or such other Person, if any, as is so authorized under the Second Lien Intercreditor Agreement) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Priority Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) any Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Priority Collateral, the Intercreditor Agent Senior Priority Representatives and the Senior Lenders Priority Secured Parties may enforce the provisions of the Senior Lender Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Credit Agreement (Snap One Holdings Corp.), Credit Agreement (MultiPlan Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender First Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-the Second Priority Agent or any Second-Agents and the Second Priority Secured Party Lenders will (x) not exercise or seek to exercise any rights or remedies (including setoffset-off) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Credit Agent or any Senior Lender in respect of the Senior Lender ClaimsFirst Priority Lender, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, blocked account agreement, landlord waiver or bailee’s 's letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either Lender is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such partyPerson, of any rights and remedies relating to the Common Collateral under the Senior Lender First Priority Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior First Priority Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Credit Agent and the Senior First Priority Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured PartyLender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-a Second Priority Agent may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims Claims, and (B) each Second-a Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender First Priority Claims, or the rights of the Intercreditor Credit Agent or the Senior First Priority Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, on the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor Credit Agent and the Senior First Priority Lenders may enforce the provisions of the Senior Lender First Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code and under the comparable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Each Second Priority Agent, on behalf of itself and each the applicable Second-Second Priority Secured PartyLenders, agrees that it will notnot take or receive, directly or indirectly, in the context of its role as secured creditorcash or other property or by setoff, take counterclaim or receive in any other manner (whether pursuant to any enforcement, collection, execution, levy or foreclosure proceeding or otherwise), any Common Collateral or any proceeds of Common Collateral Collateral, in each case in connection with the exercise of any right or remedy (including setoffset-off) with respect to any Common Collateral (or in respect of any Common Collateral in the applicable Second-event of the occurrence of an Insolvency or Liquidation Proceeding with respect to a Grantor), unless and until the Discharge of First Priority ClaimsClaims has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender First Priority Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)) above, the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties Lenders with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Second Priority Documents, as applicable, Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender the First Priority Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a)) above and without limiting the effect of other provisions of this Agreement, (i) each Second-Second Priority Agent, for itself and on behalf of each the applicable Second-Second Priority Secured PartyLenders, agrees that no Second-such Second Priority Agent or any Second-and the applicable Second Priority Secured Party Lenders will not take any action that would hinder any exercise of remedies undertaken by the Intercreditor Credit Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan First Priority Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each the applicable Second-Second Priority Secured PartyLenders, hereby waives any and all rights it or any Second-the applicable Second Priority Secured Party Lenders may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Credit Agent or the Senior First Priority Lenders seek to enforce or collect the Senior Lender First Priority Claims or the Liens granted in any of the Senior Lender First Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Credit Agent or Senior First Priority Lenders is adverse to the interests interest of the Second-Second Priority Secured PartiesLenders. (d) Each Second-Second Priority Agent Agent, on behalf of itself and the applicable Second Priority Lenders, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Credit Agent or the Senior First Priority Lenders with respect to the Senior Lender Common Collateral as set forth in this Agreement and the Senior Lender First Priority Documents.

Appears in 2 contracts

Sources: Intercreditor Agreement (Tenneco Automotive Inc), Intercreditor Agreement (Clevite Industries Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Priority Agent or neither any Second-Priority Secured Junior Representative nor any Junior Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Priority ClaimsJunior Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Priority Agent Junior Representative or any Second-Priority Secured Junior Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Priority Agent any Junior Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Junior Debt Obligations under its Junior Debt Facility, (B) each Second-Priority Agent any Junior Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with this Agreement, any Junior Representative and the Junior Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Junior Representative may exercise the rights and remedies provided for in Section 6.03 and the Junior Debt Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Debt Parties or the avoidance of any Junior Lien to the extent not inconsistent with the terms of this Agreement, (E) any Junior Debt Party may vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement, and (F) from and after the Junior Enforcement Date, the Designated Junior Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Junior Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to any or all of the Shared Collateral or (2) the Grantor which has granted a security interest in any Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding, in each case (A) through (E) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Priority AgentJunior Representative, on behalf of itself and each applicable Second-Priority Secured PartyJunior Debt Party under its Junior Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Priority ClaimsJunior Debt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Priority Agents Junior Representatives and the Second-Priority Secured Junior Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Priority Claims Junior Debt Obligations pursuant to the Second-Priority Documents, as applicable, Junior Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Priority AgentJunior Representative, for itself and on behalf of each applicable Second-Priority Secured PartyJunior Debt Party under its Junior Debt Facility, agrees that no Second-Priority Agent or neither such Junior Representative nor any Second-Priority Secured such Junior Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority AgentJunior Representative, for itself and on behalf of each applicable Second-Priority Secured PartyJunior Debt Party under its Junior Debt Facility, hereby waives any and all rights it or any Second-Priority Secured such Junior Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Priority Secured Junior Debt Parties. (d) Each Second-Priority Agent Junior Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Junior Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the Designated Senior Representative (or any person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Representative (or any person authorized by it) who may be instructed by the Junior Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Junior Collateral, and the Designated Junior Representative (or any person authorized by it) who may be instructed by the Junior Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Debt Parties with respect to the Junior Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Representatives, or for the taking of any other action authorized by the Junior Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Junior Representative or other agent or trustee acting on behalf of the Junior Debt Parties to take such actions with respect to the Junior Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Debt Parties or the Junior Debt Obligations.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)

Exercise of Remedies. Without limiting the provisions of Section 2.5: (a) So long as the Discharge of Senior Lender Claims First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent or any other Grantor, : (i) no the Second-Priority Lien Agent or any and the other Second-Priority Secured Party Lien Claimholders will (x) not exercise or seek to exercise any rights or remedies (including setoff) as a secured creditor with respect to any Common Collateral in respect of any applicable Second-Priority Claims(including, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claimswithout limitation, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any the Second-Priority Lien Agent or any Second-Priority Secured Party either Lien Claimholder is a party or may have holds a perfected interest through the Control Agent) or institute or commence, or join with any Person in commencing, any action or proceeding against the Parent or any other Grantor with respect to such rights as or remedies (including any action of foreclosure, enforcement, collection or execution), and will not contest, protest, seek to enjoin or object to any foreclosure proceeding or action brought by a third party beneficiary, First-Lien Agent or any other First-Lien Creditor or any other exercise by a First-Lien Agent or any such partyother First-Lien Creditor, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Lien Credit Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) contest, protest, seek to enjoin or object to the forbearance by a First-Lien Agent or the Senior Lenders other First-Lien Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Collateral; and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders First-Lien Agents shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any the Second-Priority Lien Agent or any other Second-Priority Secured PartyLien Claimholder; provided, howeverthat, that (A) subject to Section 2.5(c), in any Insolvency or Liquidation Proceeding commenced by or against the Company Parent or any other Grantor, each the Second-Priority Lien Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Lien Obligations, (B) each the Second-Priority Lien Agent may take any action (not adverse to the prior priority of the First-Lien Obligations and Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Lien Obligations, or the rights rights, remedies and claims of the Intercreditor Agent First-Lien Agents or the Senior Lenders to exercise remedies in respect thereofother First-Lien Creditors) in order to createpreserve, prove, perfect, preserve perfect or protect (but not enforce) its Lien on the Collateral in a manner not otherwise inconsistent with the terms of this Agreement, (C) the Second-Lien Claimholders shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second-Lien Claimholders, including any claim secured by the Collateral, if any, in each case in a manner not otherwise inconsistent with the terms of this Agreement and not adverse to the priority of the First-Lien Obligations and Liens on the Collateral securing the First-Lien Obligations or the rights, remedies and claims of the First-Lien Agents or other First-Lien Creditor, (D) the Second-Lien Claimholders shall be entitled to file any pleadings, objections, motions or agreements which assert rights inor interests available to unsecured creditors of the Grantors arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case subject to the terms of this Agreement (including, without limitation, Sections 2.5 and 5.4 hereof) and in accordance with the terms of this Agreement, (E) the Second-Lien Claimholders shall be entitled to join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by First-Lien Agent, to the extent that such action could not reasonably be expected to interfere materially with such foreclosure or proceeding, but no Second-Lien Claimholder may receive any proceeds thereof unless expressly permitted herein, and perfection and priority (E) the Second-Lien Claimholders shall be entitled to bid for or purchase Collateral at any public, private, or judicial foreclosure upon such Collateral initiated by any First-Lien Creditor, or any sale of its Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second-Lien on, Obligations unless the Common Collateralproceeds of such bid are otherwise sufficient to cause the Discharge of First-Lien Obligations. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First-Lien Agent and the Senior Lenders other First-Lien Creditors may enforce the provisions of the Senior Lender First-Lien Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc), Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or other action brought with respect to the Common Shared Collateral or any other Senior Priority Collateral by the Intercreditor Agent any Senior Priority Representative or any Senior Lender Priority Secured Party in respect of the Senior Lender ClaimsPriority Obligations, the exercise of any right by the Intercreditor Agent any Senior Priority Representative or any Senior Lender Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Senior Priority Agent Representative or any Second-Senior Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Priority Debt Documents or otherwise in respect of the Senior Lender ClaimsPriority Collateral or the Senior Priority Obligations, or (z) object to the forbearance by the Senior Lenders Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Priority Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Priority Representatives and the Senior Lenders Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral or any other Senior Priority Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against Holdings, the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Priority Obligations or the rights of the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03, (E) any Second Priority Representative and the Second Priority Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Second Priority Enforcement Date, the Major Second Priority Representative (or such other Person, if any, as is so authorized under the Second Lien Intercreditor Agreement) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Priority Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) any Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Priority Collateral, the Intercreditor Agent Senior Priority Representatives and the Senior Lenders Priority Secured Parties may enforce the provisions of the Senior Lender Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Priority Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Priority Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims Priority Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Priority Representative or the any Senior Lenders Priority Secured Party with respect to the Common Shared Collateral under the Senior Loan Priority Debt Documents, including any sale, lease, exchange, transfer or other disposition Disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties seek to enforce or collect the Senior Lender Claims Priority Obligations or the Liens granted in on any of the Senior Lender Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Priority Representative or any other Senior Lenders Priority Secured Party is adverse to the interests of the Second-Second Priority Secured Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties with respect to the Senior Lender Priority Collateral as set forth in this Agreement and the Senior Lender Priority Debt Documents. (e) Subject to the proviso in Section 3.01(a), until the Discharge of Senior Priority Obligations, the Designated Senior Priority Representative or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Priority Obligations, the Designated Second Priority Representative or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative or any Person Authorized by it shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Secured Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Secured Parties to take such actions with respect to the Collateral after the Discharge of Senior Priority Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Secured Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Grocery Outlet Holding Corp.), First Lien Credit Agreement (Grocery Outlet Holding Corp.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, : (i) no Second-Priority the Second Lien Collateral Agent or any Second-Priority Secured Party will and the Second Lien Claimholders (x) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect (including, without limitation, the exercise of any applicable Second-Priority Claimsright under any lockbox agreement, account control agreement, landlord waiver or bailee's letter or similar agreement or arrangement to which the Second Lien Collateral Agent or any Second Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, however, that the Second Lien Collateral Agent may exercise any or all such rights after the passage of a period of 180 days from the date of delivery of a notice in writing to the First Lien Collateral Agent of its intention to exercise its right to take such actions (the "STANDSTILL PERIOD"); provided, further, however, notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agent or any Second Lien Claimholder exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, the First Lien Collateral Agent or any First Lien Claimholder shall have commenced the exercise of any rights or remedies with respect the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent), (y) will not contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First Lien Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any such partyFirst Lien Claimholder, of any rights and remedies relating to the Common Collateral under the Senior Lender First Lien Credit Documents or otherwise in respect of Senior Lender Claimsotherwise, or and (z) subject to its rights under clause (i)(x) above, will not object to the forbearance by the Senior Lenders First Lien Collateral Agent or the First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral Collateral, in respect each case so long as the respective interests of Senior Lender Claims the Second Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2 hereof and (ii) except as otherwise provided herein, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Collateral Agent or any Second-Priority Secured PartySecond Lien Claimholder; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority the Second Lien Collateral Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and Second Lien Obligations, (B) each Second-Priority the Second Lien Collateral Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst Lien Obligations, or the rights of the Intercreditor any First Lien Collateral Agent or the Senior Lenders First Lien Claimholders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect its Lien on the Collateral, (but not enforceC) the Second Lien Claimholders shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Claimholders, including without limitation any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement (D) the Second Lien Claimholders shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement, (E) the Second Lien Claimholders shall be entitled to file any proof of claim and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Second Lien Obligations and the Collateral and (F) the Second Lien Collateral Agent or any Second Lien Claimholder may exercise any of its rights in, and perfection and priority or remedies with respect to the Collateral after the termination of its Lien on, the Common CollateralStandstill Period to the extent permitted by clause (i)(x) above. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Claimholders may enforce the provisions of the Senior Lender First Lien Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Credit Agreement (Carmike Cinemas Inc), Credit and Guaranty Agreement (Carmike Cinemas Inc)

Exercise of Remedies. (a) So Subject to the provisions of the second sentence of Section 2.2(a) hereof, so long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, : (i) no Second-Priority Agent or any Second-Priority Secured Party neither the Trustee nor the Subordinated Creditor will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect (including, without limitation, the exercise of any applicable Second-Priority Claimsright under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Trustee or any Subordinated Creditor is a party) or institute or commence, or join with any Person in commencing, any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution and any Proceeding), (y) and will not contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Senior Agent or any other Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, Creditor or any other exercise by the Senior Agent or any such party, other Senior Creditor of any rights and remedies relating to the Common Collateral under the Senior Lender Credit Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior Lenders Agent or the other Senior Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Collateral; and (ii) except as otherwise provided hereinthe Senior Agent shall have the exclusive right, the Intercreditor Agent and the Required Senior Lenders Creditors shall have the exclusive right to instruct the Senior Agent, to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent the Trustee or any Second-Priority Secured Partythe Subordinated Creditor, all as though the Subordinated Obligations did not exist; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent the Trustee may (x) subject to the provisions of Section 2.2(b) hereof, file a claim or statement of interest with respect to the applicable Second-Priority Claims Subordinated Obligations and (y) subject to the provisions of Section 2.2(c) hereof, vote such claim, (B) each Second-Priority Agent the Trustee, at the written direction of the Subordinated Creditor, may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsObligations, or the rights of the Intercreditor Senior Agent or the other Senior Lenders Creditors to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onon Collateral in accordance with the terms of this Agreement (and, with respect to its Liens on Specified Collateral, shall take any such action if instructed to do so by the Senior Agent), (C) the Subordinated Creditor shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Creditor, including any claim secured by Collateral, if any, in each case in accordance with the terms of this Agreement and (D) the Subordinated Creditor may file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement and (E) subject to the provisions of Section 2.2(c) hereof, the Common Collateral. In exercising rights Trustee and remedies the Subordinated Creditor may file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement with respect to the Senior Lender Subordinated Obligations and Common Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as Subject to the Discharge provisions of Senior Lender Claims has not occurredSection 2.2(a) hereof, each Second-Priority Agent, on behalf of itself the Trustee and each applicable Second-Priority Secured Party, the Subordinated Creditor agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect Collateral, unless and until the Discharge of the applicable Second-Priority ClaimsSenior Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Trustee and the Second-Priority Secured Parties Subordinated Creditor with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Subordinated Security Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of the Senior Lender Claims Obligations has occurredoccurred in accordance with the terms of the Subordinated Debt Documents and applicable law. (c) Subject to Each of the proviso in clause (ii) of Section 3.1(a), Trustee and the Subordinated Creditor (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party neither the Trustee nor the Subordinated Creditor will take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Credit Documents, including any collection, sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or Security Document or subordinate the priority of the Senior Obligations to the Subordinated Obligations or grant the Liens on Common Collateral securing the Subordinated Obligations equal ranking to the Liens securing the Senior Obligations and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the Intercreditor Senior Agent or the other Senior Lenders Creditors seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Senior Agent or Senior Lenders Creditors is adverse to the interests interest of the Second-Priority Secured PartiesTrustee or the Subordinated Creditor. (d) Each Second-Priority Agent The Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Security Documents or any applicable Second-Priority other Subordinated Credit Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Senior Agent or the other Senior Lenders Creditors with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Credit Documents.

Appears in 2 contracts

Sources: Recapitalization Agreement (Global Crossing LTD), Subordination and Intercreditor Agreement (Global Crossing LTD)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority the Term Loan Collateral Agent or any Second-Priority and each Term Loan Secured Party will (x) from the date hereof until the occurrence of the Term Loan Enforcement Date will not exercise or seek to exercise any rights or remedies (including including, but not limited to, setoff, recoupment, and the right to credit bid debt, if any) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsTerm Loan Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) will not contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Common Collateral by the Intercreditor ABL Collateral Agent or any Senior Lender ABL Secured Party in respect of the Senior Lender ClaimsABL Obligations, the exercise of any right by the Intercreditor ABL Collateral Agent or any Senior Lender ABL Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Common Collateral under any lockbox control agreement, control lockbox agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority the Term Loan Collateral Agent or any Second-Priority Term Loan Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies as a secured party relating to the Common Collateral under the Senior Lender ABL Documents or otherwise in respect of Senior Lender Claimsthe ABL Obligations, or and (z) will not object to the any waiver or forbearance by the Senior Lenders ABL Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims ABL Obligations and (ii) except as otherwise provided herein, the Intercreditor ABL Collateral Agent and the Senior Lenders ABL Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff including, but not limited to, setoff, recoupment, and the any right to credit bid their debt) ), marshal, process and make determinations regarding the release, disposition or restrictions restrictions, or waiver or forbearance of rights or remedies with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Term Loan Collateral Agent or any Second-Priority Term Loan Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority the Term Loan Collateral Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Term Loan Obligations, (B) each Second-Priority the Term Loan Collateral Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsABL Obligations, or the rights of the Intercreditor ABL Collateral Agent or the Senior Lenders ABL Secured Parties to exercise remedies in respect thereof) ), including sending such notices of the existence of, or any evidence or confirmation of, the Term Loan Obligations or the Liens of Term Loan Collateral Agent in the Common Collateral to any court or governmental agency, or file or record any such notice or evidence, in order to create, prove, perfectpreserve, preserve or protect (but not enforce) its rights in, and including the perfection and priority of its any Lien on, the Common Collateral, (C) the Term Loan Secured Parties shall be entitled to file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Term Loan Secured Parties, including without limitation any claims secured by the Common Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement, (D) the Term Loan Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the applicable Bankruptcy Law or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement, or as may otherwise be consented to by the ABL Collateral Agent, (E) the Term Loan Collateral Agent or any Term Loan Secured Party shall be entitled to vote on any Plan of Reorganization, in a manner and to the extent consistent with the provisions hereof, and (F) the Term Loan Collateral Agent or any Term Loan Secured Party may exercise any of its rights or remedies with respect to (1) the Common Collateral upon the occurrence and during the effective continuation of the Term Loan Enforcement Date and (2) with respect to the Non-Common Collateral, at any time, including, without limitation, objecting to any action by the ABL Collateral Agent or any ABL Secured Party with respect to the Non-Common Collateral. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor ABL Collateral Agent and the Senior Lenders ABL Secured Parties may enforce the provisions of the Senior Lender ABL Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims ABL Obligations has not occurred, each Second-Priority the Term Loan Collateral Agent, on behalf of itself and each applicable Second-Priority Term Loan Secured Party, agrees that it will not, in the context of its role as secured creditorlender or otherwise as a Term Loan Secured Party, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy or otherwise in an Insolvency or Liquidation Proceeding (including including, but not limited to, setoff, recoupment, or the right to credit bid debt) with respect to any Common Collateral in respect of the applicable Second-Priority ClaimsTerm Loan Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims ABL Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Term Loan Collateral Agent and the Second-Priority Term Loan Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims Term Loan Obligations pursuant to the Second-Priority Term Loan Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims ABL Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority the Term Loan Collateral Agent, for itself and on behalf of each applicable Second-Priority Term Loan Secured Party, agrees that no Second-Priority none of the Term Loan Collateral Agent or any Second-Priority Term Loan Secured Party will take any action that would hinder hinder, delay or impede any exercise of remedies undertaken by the Intercreditor ABL Collateral Agent or the Senior Lenders ABL Secured Parties with respect to the Common Collateral under the Senior Loan DocumentsCollateral, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority the Term Loan Collateral Agent, for itself and on behalf of each applicable Second-Priority Term Loan Secured Party, hereby waives any and all rights it or any Second-Priority Term Loan Secured Party may have as a junior lien creditor creditor, including, but not limited to, any rights to “adequate protection,” as such term is defined in Section 3(b) of the Bankruptcy Code, in any Insolvency or Liquidation Proceeding or otherwise to object to the manner or order in which the Intercreditor ABL Collateral Agent or the Senior Lenders ABL Secured Parties seek to enforce or collect the Senior Lender Claims ABL Obligations or the Liens granted in any of the Senior Lender Common Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor ABL Collateral Agent or Senior Lenders ABL Secured Parties is adverse to the interests of the Second-Priority Term Loan Secured Parties. (d) Each Second-Priority The Term Loan Collateral Agent and each Term Loan Secured Party hereby acknowledges acknowledge and agrees agree that no covenant, agreement or restriction contained in any applicable Second-Priority Term Loan Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor ABL Collateral Agent or the Senior Lenders ABL Secured Parties with respect to the Senior Lender Common Collateral as set forth in this Agreement and the Senior Lender ABL Documents. (e) So long as the Discharge of ABL Obligations has not occurred, the Term Loan Collateral Agent, on behalf of itself and the applicable Term Loan Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under any applicable law, including, but not limited to, the Bankruptcy Code or other Bankruptcy Law, with respect to the Common Collateral or any other similar rights a junior secured creditor may have under such applicable law.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Tesoro Corp /New/), Abl Intercreditor Agreement (Tesoro Corp /New/)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First Lien Objections has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent none of the Junior Lien Collateral Agent, any Junior Lien Representative or any Second-Priority Junior Lien Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff and the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsJunior Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor First Lien Collateral Agent or any Senior Lender First Lien Secured Party in respect of the Senior Lender ClaimsFirst Lien Obligations, the exercise of any right by the Intercreditor First Lien Collateral Agent or any Senior Lender First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims First Lien Obligations under any lockbox control agreement, control lockbox agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Junior Lien Collateral Agent, any Second-Priority Agent Junior Lien Representative or any Second-Priority Junior Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies as a secured party relating to the Common Collateral or any other collateral under the Senior Lender First Lien Documents or otherwise in respect of Senior Lender ClaimsFirst Lien Obligations, or (z) object to the any waiver or forbearance by the Senior Lenders First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims First Lien Obligations and (ii) except as otherwise provided herein, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) ), marshal, process and make determinations regarding the release, disposition or restrictions restrictions, or waiver or forbearance of rights or remedies with respect to the Common Collateral without any consultation with or the consent of the Junior Lien Collateral Agent, any Second-Priority Agent Junior Lien Representative or any Second-Priority Junior Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority the Junior Lien Collateral Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims Junior Lien Obligations and (B) each Second-Priority the Junior Lien Collateral Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst Lien Obligations, or the rights of the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender First Lien Collateral or Common Collateral, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Secured Parties may enforce the provisions of the Senior Lender First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First Lien Obligations has not occurred, each Second-Priority Agentof the Junior Lien Collateral Agent and each Junior Lien Representative, on behalf of itself and each applicable Second-Priority Junior Lien Secured Party, agrees that it will not, in the context of its role as secured creditorlender, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy or otherwise in an Insolvency or Liquidation Proceeding (including setoffset off or the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Common Collateral in respect of the applicable Second-Priority ClaimsJunior Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Junior Lien Collateral Agent, the Junior Lien Representatives and the Second-Priority Junior Lien Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims Junior Lien Obligations pursuant to the Second-Priority Junior Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims First Lien Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority the Junior Lien Collateral Agent, for itself and on behalf of each applicable Second-Priority Junior Lien Secured Party, agrees that no Second-Priority Agent none of the Junior Lien Collateral Agent, any Junior Lien Representative or any Second-Priority Junior Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties with respect to the Common Collateral, the First Lien Collateral or any other collateral under the Senior Loan First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, the First Lien Collateral or such other collateral, whether by foreclosure or otherwise, and (ii) the Junior Lien Collateral Agent and each Second-Priority AgentJunior Lien Representative, for itself and on behalf of each applicable Second-Priority Junior Lien Secured Party, hereby waives any and all rights it or any Second-Priority Junior Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties seek to enforce or collect the Senior Lender Claims First Lien Obligations or the Liens granted in any of the Senior Lender First Lien Collateral or Common Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Collateral Agent or Senior Lenders First Lien Secured Parties is adverse to the interests of the Second-Priority Junior Lien Secured Parties. (d) Each Second-Priority Agent The Junior Lien Collateral Agent, each Junior Lien Representative and each Junior Lien Secured Party hereby acknowledges acknowledge and agrees agree that no covenant, agreement or restriction contained in any applicable Second-Priority Junior Lien Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties with respect to the Senior Lender First Lien Collateral or Common Collateral as set forth in this Agreement and the Senior Lender First Lien Documents. (e) So long as the Discharge of First Lien Obligations has not occurred, none of the Junior Lien Collateral Agent, any other Junior Lien Representative or any other Junior Lien Secured Party may assert or enforce any right of marshalling accorded to a junior lienholder, as against the First Lien Collateral Agent or any First Lien Secured Party (in their capacity as priority lienholders). (f) Section 3.1 hereof shall not be construed to in any way limit or impair the right of any Junior Lien Secured Party from exercising a credit bid with respect to the Junior Lien Obligations in a sale or other disposition of Common Collateral under Section 363 of the Bankruptcy Code, provided that in connection with and immediately after giving effect to such sale and credit bid there occurs a Discharge of First Lien Obligations.

Appears in 2 contracts

Sources: General Intercreditor Agreement, General Intercreditor Agreement (Marietta Surgical Center, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender ABL Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 5.6, (i) no Second-Priority Term/Note Agent or any Second-Priority Secured Party Term/Note Holder will (x) exercise Exercise Any Secured Creditor Remedies or seek to exercise any rights or remedies Exercise Any Secured Creditor Remedies (including setoff, recoupment or the right to credit bid debt, if any) with respect to any Common Collateral in respect of ABL Priority Collateral, or exercise any applicable Second-Priority Claimsright under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure or enforcement proceeding or action brought with respect to the Common ABL Priority Collateral by the Intercreditor an ABL Agent or any Senior ABL Lender in respect of the Senior Lender ABL Claims, the exercise of any right by the Intercreditor an ABL Agent or any Senior ABL Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender ABL Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority a Term/Note Agent or any Second-Priority Secured Party Term/Note Holder either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common ABL Priority Collateral under the Senior Lender ABL Loan Documents or otherwise in respect of Senior Lender ABL Claims, or (z) object to any waiver or the forbearance by the Senior ABL Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise Exercise of any rights or remedies Any Secured Creditor Remedies relating to the Common ABL Priority Collateral or any other collateral in respect of Senior Lender ABL Claims and (ii) except as otherwise provided herein, the Intercreditor Agent ABL Agents and the Senior ABL Lenders shall have the exclusive right (as between any ABL Agent and any ABL Lender, on the one hand, and any Term/Note Agent and any Term/Note Holder, on the other hand) to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common ABL Priority Collateral without any consultation with or the consent of any Second-Priority Term/Note Agent or any Second-Priority Secured PartyTerm/Note Holder; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority a Term/Note Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Term/Note Claims and (B) each Second-Priority a Term/Note Agent may take any action (not adverse to the prior Liens on the Common ABL Priority Collateral securing the Senior Lender ABL Claims, or the rights of the Intercreditor Agent ABL Agents or the Senior ABL Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common ABL Priority Collateral; provided, further, that any Term/Note Agent or any Term/Note Holder may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (I) the date on which a Term/Note Agent declared the existence of an “Event of Default” under the applicable Term/Note Documents, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all Term/Note Claims, and demanded payment thereof and (II) the date on which each of the ABL Agents has received notice thereof from such Term/Note Agent; provided, further, however, that neither any Term/Note Agent nor any other Term/Note Holder shall exercise any rights or remedies with respect to the ABL Priority Collateral if, notwithstanding the expiration of such 180-day period, any ABL Agent or any ABL Lender (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the ABL Priority Collateral (prompt written notice of such exercise to be given to the Term/Note Agents), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies. In exercising rights and remedies with respect to the Senior Lender ABL Priority Collateral, the Intercreditor Agent ABL Agents and the Senior ABL Lenders may enforce the provisions of the Senior Lender ABL Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondetermine. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common ABL Priority Collateral or other collateral upon foreclosure, to credit bid for such ABL Priority Collateral, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Term/Note Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 5.6, (i) no ABL Agent or ABL Lender will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies (including setoff, recoupment or the right to credit bid, if any) with respect to any Term/Note Priority Collateral, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure or enforcement proceeding or action brought with respect to the Term/Note Priority Collateral by a Term/Note Agent or any Term/Note Holder in respect of the Term/Note Claims, the exercise of any right by a Term/Note Agent or any Term/Note Holder (or any agent or sub-agent on their behalf) in respect of the Term/Note Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which an ABL Agent or any ABL Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Term/Note Priority Collateral under the Term/Note Documents or otherwise in respect of Term/Note Claims, or (z) object to any waiver or the forbearance by the Term/Note Holders from bringing or pursuing any foreclosure proceeding or action or any other Exercise of Any Secured Creditor Remedies relating to the Term/Note Priority Collateral or any other collateral in respect of Term/Note Claims and (ii) except as otherwise provided herein, the Term/Note Agents and the Term/Note Holders shall have the exclusive right (as between any Term/Note Agent and the Term/Note Holders, on the one hand, and any ABL Agent and any ABL Lender, on the other hand) to enforce rights, exercise remedies (including setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Term/Note Priority Collateral without any consultation with or the consent of any ABL Agent or any ABL Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, an ABL Agent may file a proof of claim or statement of interest with respect to the applicable ABL Claims and (B) an ABL Agent may take any action (not adverse to the prior Liens on the Term/Note Priority Collateral securing the Term/Note Claims, or the rights of the Term/Note Agents or the Term/Note Holders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Term/Note Priority Collateral; provided, further, that an ABL Agent or any ABL Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (I) the date on which an ABL Agent declared the existence of an “Event of Default” under the applicable ABL Loan Documents, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all ABL Claims, and demanded payment thereof and (II) the date on which each of the Term/Note Agents have received notice thereof from such ABL Agent; provided, further, however, that neither any ABL Agent nor any other ABL Lender shall exercise any rights or remedies with respect to the Term/Note Priority Collateral if, notwithstanding the expiration of such 180-day period, any Term/Note Agent or any Term/Note Holder (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the Term/Note Priority Collateral (prompt written notice of such exercise to be given to the ABL Agents), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies. In exercising rights and remedies with respect to the Term/Note Priority Collateral, the Term/Note Agents and the Term/Note Holders may enforce the provisions of the Term/Note Documents and exercise remedies thereunder, all in such order and in such manner as they may determine. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term/Note Priority Collateral or other collateral upon foreclosure, to credit bid for such Term/Note Priority Collateral, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (c) So long as the Discharge of ABL Claims has not occurred, each Second-Priority Term/Note Agent, on behalf of itself and each applicable Second-Priority Secured PartyTerm/Note Holder, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common ABL Priority Collateral or any proceeds of Common ABL Priority Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-ABL Priority ClaimsCollateral. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender ABL Claims has occurred, except as expressly provided in the proviso provisos in clause (ii) of Section 3.1(a), the sole right of (as between any ABL Agent and any ABL Lender, on the Second-Priority Agents one hand, and any Term/Note Agent and the Second-Priority Secured Parties Term/Note Holders, on the other hand) of each Term/Note Agent and the Term/Note Holders with respect to the Common ABL Priority Collateral is to hold a Lien on the Common ABL Priority Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Term/Note Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender ABL Claims has occurred. (cd) So long as the Discharge of Term/Note Claims has not occurred, each ABL Agent, on behalf of itself and each applicable ABL Lender agrees that it will not take or receive any Term/Note Priority Collateral or any proceeds of Term/Note Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Term/Note Priority Collateral. Without limiting the generality of the foregoing, unless and until the Discharge of Term/Note Claims has occurred, except as expressly provided in the provisos in clause (ii) of Section 3.1(b), the sole right (as between any Term/Note Agent and the Term/Note Holders, on the one hand, and any ABL Agent and any ABL Lender, on the other hand) of each ABL Agent and the ABL Lenders with respect to the Term/Note Priority Collateral is to hold a Lien on the Term/Note Priority Collateral pursuant to the ABL Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term/Note Claims has occurred. (e) Subject to the proviso provisos in clause (ii) of Section 3.1(a)) above and Section 5.6, (i) each Second-Priority Term/Note Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm/Note Holder, agrees that no Second-Priority Agent or any Second-Priority Secured Party the Term/Note Agents and the Term/Note Holders will not take any action that would hinder any exercise Exercise of remedies Any Secured Creditor Remedies undertaken by the Intercreditor any ABL Agent or the Senior ABL Lenders with respect to the Common ABL Priority Collateral under the Senior ABL Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common ABL Priority Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Term/Note Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm/Note Holder, hereby waives any and all rights it or any Second-Priority Secured Party such Term/Note Holder may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent ABL Agents or the Senior ABL Lenders seek to enforce or collect the Senior Lender ABL Claims with respect to the ABL Priority Collateral or the Liens granted in any of the Senior Lender ABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent ABL Agents or Senior ABL Lenders is adverse to the interests of the Second-Priority Secured PartiesTerm/Note Holders. (df) Subject to the provisos in clause (ii) of Section 3.1(b) above and Section 5.6, (i) each ABL Agent, for itself and on behalf of each applicable ABL Lender, agrees that the ABL Agents and the ABL Lenders will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by any Term/Note Agent or the Term/Note Holders with respect to the Term/Note Priority Collateral under the Term/Note Documents, including any sale, lease, exchange, transfer or other disposition of the Term/Note Priority Collateral, whether by foreclosure or otherwise, and (ii) each ABL Agent, for itself and on behalf of each applicable ABL Lender, hereby waives any and all rights it or any ABL Lender may have as a junior lien creditor or otherwise to object to the manner in which the Term/Note Agents or the Term/Note Holders seek to enforce or collect the Term/Note Claims with respect to the Term/Note Priority Collateral or the Liens granted in any of the Term/Note Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Term/Note Agents or Term/Note Holders is adverse to the interests of the ABL Lenders. (g) Each Second-Priority Term/Note Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Term/Note Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent ABL Agents or the Senior ABL Lenders with respect to the Senior Lender ABL Priority Collateral as set forth in this Agreement and the Senior Lender ABL Loan Documents. (h) Each ABL Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable ABL Loan Document shall be deemed to restrict in any way the rights and remedies of the Term/Note Agents or the Term/Note Holders with respect to the Term/Note Priority Collateral as set forth in this Agreement and the Term/Note Documents.

Appears in 2 contracts

Sources: Abl/Term Loan/Notes Intercreditor Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Creditor Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)) with respect to any Common Collateral, (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor any First Lien Agent or any Senior Lender Creditor in respect of the Senior Lender Creditor Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender Creditor (or any agent or sub-agent on their behalf) in respect of the Senior Lender Creditor Claims under any lockbox agreement, control agreement, management agreement, lease, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Creditor Documents or otherwise in respect of Senior Lender Claims, Creditor Claims or (z) object to the forbearance by the Senior Lenders Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Creditor Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders Creditors shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral and to direct the time, method, and place for exercising such right or remedy or conducting any proceeding with respect thereto, without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) any Second Priority Agent and the Second Priority Secured Parties represented by it may exercise any or all such rights after the passage of a period of 180 days from the occurrence of both (i) an Event of Default (under and as defined in the applicable Second Priority Documents) (or the Equivalent Provision thereof) and (ii) the date of delivery of a notice in writing to each First Lien Agent of such Second Priority Agent’s or Second Priority Secured Party’s intention to exercise its right to take such actions which notice shall specify that an “Event of Default” as defined in the applicable Second Priority Documents (or the Equivalent Provision thereof) has occurred and as a result of such “Event of Default” (or the Equivalent Provision thereof), the principal and interest under such Second Priority Documents have become due and payable (whether as a result of acceleration thereof or otherwise) (the “Second Priority Standstill Period”) unless (i) a First Lien Agent has commenced and is diligently pursuing remedies with respect to any material portion of the Common Collateral (or such attempt is stayed by an Insolvency or Liquidation Proceeding), (ii) the Grantor that has granted a security interest in such Common Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding or (iii) the acceleration of the applicable Second Priority Claims is rescinded in accordance with the terms of the applicable Second Priority Documents and (B) (1) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B2) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Creditor Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders Creditors to exercise remedies in respect thereof) as necessary in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral, (3) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Second Priority Agent may file any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Party, (4) each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Borrower or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law and (5) each Second Priority Agent and each Second Priority Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor, in each case (B)(1) through (5) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with or otherwise in contravention of, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Creditor Collateral, the Intercreditor each First Lien Agent and the Senior Lenders Creditors may enforce the provisions of the Senior Lender Creditor Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Creditor Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that that, except as expressly provided in the proviso to the first sentence of Section 3.1(a), it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Creditor Claims has occurred, except as expressly provided in the proviso in clause (ii) to the first sentence of Section 3.1(a), the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Creditor Claims has occurred. (c) Subject to the proviso in clause (ii) the first sentence of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-other Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders Creditors with respect to the Common Collateral under the Senior Loan Creditor Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders Creditors seek to enforce or collect the Senior Lender Creditor Claims or the Liens granted in any of the Senior Lender Creditor Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders Creditors is adverse to the interests of the Second-Second Priority Secured Parties, and (iii) each Second Priority Agent, for itself and on behalf of each applicable Second Priority Secured Party, hereby acknowledges that any Senior Creditor may direct the First Priority Designated Agent or the First Priority Collateral Agent (or direct the First Priority Designated Agent to direct the First Priority Collateral Agent) to take actions to enforce rights or exercise remedies (v) in any manner in its sole discretion in compliance with applicable law, (w) without consultation with or the consent of any Second Priority Secured Parties, (x) regardless of whether or not an Insolvency or Liquidation Proceeding has commenced, (y) regardless of any provision of any Second Priority Documents (other than this Agreement) and (z) regardless of whether or not such exercise is adverse to the interest of any Second Priority Secured Parties. (d) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor any First Lien Agent or the Senior Lenders Creditors with respect to the Senior Lender Creditor Collateral as set forth in this Agreement and the Senior Lender Creditor Documents.

Appears in 2 contracts

Sources: Indenture (Caesars Entertainment, Inc.), Indenture (Caesars Entertainment, Inc.)

Exercise of Remedies. (a) So long as The Administrative Agent is the Discharge “Administrative Agent” and the Collateral Agent is the “Collateral Agent” for each Guaranteed Party under the Credit Agreement and the other Loan Documents, including this Guaranty. All rights granted to Administrative Agent or Collateral Agent under or in connection with this Guaranty are for each Guaranteed Party’s ratable benefit. Administrative Agent or Collateral Agent may, without the joinder of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorGuaranteed Party, (i) no Second-Priority Agent or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights in Administrative Agent’s, Collateral Agent’s or remedies (including setoff) Guaranteed Parties’ favor under or in connection with respect this Guaranty. Administrative Agent’s or Collateral Agent’s and each Guaranteed Party’s rights and obligations vis-a-vis each other may be subject to one or more separate agreements between those parties. However, no Guarantor is required to inquire about any such agreement, nor is any Guarantor subject to any Common Collateral in respect terms thereof unless such Guarantor specifically enters into such agreement. Therefore, except to the extent expressly set forth therein, neither any Guarantor nor any Guarantor’s successors or assigns is entitled to any benefits or provisions of any applicable Second-Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar separate agreement or arrangement to which any Second-Priority Agent such Guarantor is not a party, or any Second-Priority Secured Party either is a party entitled to rely upon or may have rights raise as a third party beneficiary, defense any party’s failure or any other exercise by any such party, of any rights and remedies relating refusal to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions comply with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunderany such agreement. Accordingly, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell Administrative Agent or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself the Guaranteed Parties, shall have the right to enforce, from time to time, in any order and at Administrative Agent’s or Collateral Agent’s Permitted Discretion, any rights, powers and remedies which Administrative Agent, Collateral Agent or the Guaranteed Parties may have under, and in accordance with, the Loan Documents or otherwise, including judicial foreclosure, the exercise of rights of power of sale, the taking of a deed or assignment in lieu of foreclosure, the exercise of remedies against personal property, or the enforcement of any assignment of leases, rentals, oil or gas production, or other properties or rights, whether real or personal, tangible or intangible; and each applicable Second-Priority Secured PartyGuarantor shall be liable to the Guaranteed Parties hereunder for any deficiency resulting from the exercise by Administrative Agent or Collateral Agent, agrees on behalf of the Guaranteed Parties, of any such right or remedy even though any rights that it will notsuch Guarantor may have against Borrower, any other Obligor or others may be destroyed or diminished by exercise of any such right or remedy. No failure on the part of any Guaranteed Party to exercise, and no delay in the context exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of its role as secured creditor, take any right preclude any other or receive any Common Collateral further exercise thereof or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claimsother right. Without limiting the generality of the foregoingThe rights, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights powers and remedies of each Guaranteed Party provided herein and in the Intercreditor Agent other Loan Documents are cumulative and are in addition to, and not exclusive of, any other rights, powers or remedies provided by Law or in equity. The rights of the Senior Lenders with respect Guaranteed Parties hereunder are not conditional or contingent on any attempt by any Guaranteed Party to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documentsexercise any of its rights or exhaust any recourse under any other Loan Document against any Obligor or any other Person.

Appears in 2 contracts

Sources: Credit Agreement (Niska Gas Storage Partners LLC), Guaranty

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has Obligations have not occurredbeen paid in full, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower, the Parent or any of its Subsidiaries (other Grantorthan Excluded Subsidiaries), (i) no Second-Priority the Junior Collateral Agent or any Second-Priority and the Junior Obligations Secured Party Parties (by their acceptance of the benefits of the Junior Documents) will not (x1) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Senior Obligations Collateral in respect of any applicable Second-Priority Claimssecuring the Junior Obligations, (2) institute any action or proceeding with respect to such rights or remedies Senior Obligations Collateral securing the Junior Obligations (including including, without limitation, any action of foreclosure), contest or protest) or (y3) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Senior Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, Obligations Secured Party or the exercise of any right by the Intercreditor Agent or under any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter Obligations Collateral Document or similar agreement or arrangement to which any Second-Priority the Senior Collateral Agent or any Second-Priority Senior Obligations Secured Party either is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such party, party of any rights and remedies remedies, in each case relating to the Common Senior Obligations Collateral under the Senior Lender Documents or otherwise in respect otherwise; or, except as provided herein, object to any release of any or all of the Senior Lender ClaimsObligations Collateral for any purpose, or (z) object to the forbearance by the Senior Lenders Collateral Agent or Senior Obligations Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect Senior Obligations Collateral; provided, however, that nothing herein shall be construed to impair the right of Senior Lender Claims the Junior Obligations Secured Parties to exercise their rights and remedies as unsecured creditors pursuant to Section 5.4 of this Agreement; and (ii) except as otherwise provided hereinsubject to the rights of the Junior Collateral Agent and the Junior Obligations Secured Parties under the proviso to clause (i) above, the Intercreditor Senior Collateral Agent and the Senior Lenders Obligations Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Senior Obligation Collateral without any consultation with or the consent of any Second-Priority the Junior Collateral Agent or any Second-Priority other Junior Obligations Secured Party, and the Junior Collateral Agent shall take any action reasonably requested by the Senior Collateral Agent in order to effectuate any such enforcement, exercise, release or disposition; provided, however, that (Ax) in any Insolvency or Liquidation Proceeding commenced by or against any Loan Party, the Company or any other Grantor, each Second-Priority Junior Collateral Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims Junior Obligations Collateral, (y) the Junior Collateral Agent and (B) each Second-Priority Agent the Junior Obligations Secured Parties may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Obligations Secured Parties in order to create, prove, perfect, preserve or protect (but not enforce) its their rights inin the Senior Obligations Collateral and the Junior Collateral Agent may act in coordination with, and perfection and priority of its Lien onnot in a manner adverse to, the Common Senior Collateral Agent and the Senior Obligations Secured Parties in exercising any remedies initiated by the Senior Collateral Agent or Senior Obligations Secured Parties with respect to the Senior Obligations Collateral, and (z) at any time that a Junior Obligations Event of Default has occurred and as long as such Junior Obligations Event of Default is continuing, the Required ABL Lenders or the Required Term Loan Lenders, as applicable, may instruct the applicable Junior Administrative Agent to declare Junior Obligations under the applicable Junior Credit Agreement to be forthwith due and payable in accordance with Section 6.01 of the applicable Junior Credit Agreement, whereupon the Junior Obligations shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind. In exercising rights and remedies with respect to the Senior Lender Obligations Collateral, the Intercreditor Senior Collateral Agent and each Senior Obligations Secured Party (by its acceptance of the benefits of the Senior Lenders Documents) may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion, subject to acting in a commercially reasonable manner in accordance with the UCC and the terms of this Agreement and the other Senior Documents. Such exercise and enforcement shall include include, without limitation, the rights of an agent appointed by them to sell or otherwise dispose of Common such Senior Obligations Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdictionDebtor Relief Laws. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself The Junior Collateral Agent and each applicable Second-Priority Junior Obligations Secured Party, Party (by its acceptance of the benefits of the Junior Documents) agrees that it will shall not, in with respect to the context of its role as secured creditorJunior Obligations, take or receive from or on behalf of any Common Loan Party or any Subsidiary of a Loan Party, directly or indirectly, in cash or other property or by setoff, counterclaim or in any other manner (whether pursuant to any enforcement, collection, execution, levy, foreclosure action or other proceeding or otherwise) any Senior Obligations Collateral or any proceeds of Common Collateral Senior Obligations Collateral, unless and until all Senior Obligations have been paid in connection full in accordance with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority ClaimsSection 3.2 hereof. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurredObligations have been paid in full, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)herein, the sole right of the Second-Priority Agents Junior Collateral Agent and the Second-Priority Junior Obligations Secured Parties with respect to the Common Senior Obligations Collateral is to hold a Lien on the Common Senior Obligations Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Junior Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after payment in full of the Discharge Senior Obligations; provided, however, that nothing in this paragraph shall be construed to impair the right of the Junior Obligations Secured Parties to receive payments of principal, interest, fees and other amounts in respect of the Junior Obligations as provided for in the applicable Credit Agreement and the Notes referred to in such applicable Credit Agreement, and to enforce the making of such payments by bringing suit at law (but not, except as provided in Section 3.1(a)(i) above, to exercise any rights in respect of the Liens of the Junior Collateral Agent on the Senior Lender Claims has occurred. Obligations Collateral) with respect to any unpaid amounts of such payments. Each of the Junior Collateral Agent and the Junior Obligations Secured Parties (c) Subject to by its acceptance of the proviso in clause (ii) benefits of Section 3.1(a), the Junior Documents): (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, further agrees that no Second-Priority the Junior Collateral Agent or any Second-Priority and the other Junior Obligations Secured Party Parties will not take any action that would hinder be reasonably likely to (w) hinder, delay, limit, impede or prohibit any exercise of remedies undertaken by the Intercreditor Senior Collateral Agent or to the extent related to satisfying the Senior Lenders with respect to the Common Collateral under the Senior Loan DocumentsObligations, including any collection, sale, lease, exchange, transfer or other disposition of the Common Senior Obligations Collateral, whether by foreclosure or otherwise, (x) limit, invalidate, avoid or set aside any Senior Lien or Collateral Document securing or purporting to secure the Senior Obligations, (y) subordinate the priority of the Senior Liens to the Junior Liens or (z) grant the Junior Liens securing the Junior Obligations equal ranking to the Senior Liens securing the Senior Obligations and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have (other than as specified herein) as a junior lien creditor or otherwise (whether arising under the UCC or under any other applicable law) to object to the manner in which the Intercreditor Senior Collateral Agent or the Senior Lenders Obligations Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or enforce the Senior Liens now or hereafter granted in any of Senior Obligations Collateral to secure the Senior Lender CollateralObligations, regardless of whether any action or failure to act by or on behalf of the Intercreditor Senior Collateral Agent or the Senior Lenders Obligations Secured Parties is adverse to the interests interest of the Second-Priority Junior Obligations Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Asset Based Loan Credit Agreement (Express Parent LLC), Term Loan Credit Agreement (Express Parent LLC)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorObligors, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, institute or institute, or join with any person (other than the Senior Secured Parties and the Senior Representatives upon the request of the Designated Senior Representative) in instituting, any action or proceeding with respect to such rights or remedies (including any enforcement, collection, execution, levy or action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent subagent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or Obligors, any other Grantor, each Second-Second Priority Agent Representative may file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with or in violation of this Agreement, any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Debt Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) any Second Priority Debt Party may vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding in a manner that conforms to the terms and conditions of this Agreement, and (F) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to any or all of the Shared Collateral or (2) the Obligor which has granted a security interest in any Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding, in each case (A) through (E) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion (and subject to their rights under the applicable Senior Debt Documents). Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Indenture Agreement (DISH Network CORP), Indenture (DISH Network CORP)

Exercise of Remedies. (a) 3.1.1. So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrowers or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrowers or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.4 and (D) from and after a Second Priority Enforcement Date, the Enforcement Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) 3.1.2. So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)3.1.1, the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) 3.1.3. Subject to the proviso in clause (ii) of Section 3.1(a)3.1.1, (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) 3.1.4. Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. 3.1.5. Until the Discharge of Senior Obligations, subject to Section 3.1.1, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section 3.1.5 shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (Outfront Media Minnesota LLC)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) the Senior Representatives and the Senior Secured Parties shall (except as otherwise provided herein, set forth herein with respect to the Intercreditor Agent and the Senior Lenders shall Second Priority Enforcement Date) have the exclusive right to enforce rights, exercise remedies (including setoff or recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, and (E) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to all or a material portion of the Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder or delay any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: Credit Agreement (Apria, Inc.), Credit Agreement (Apria, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Revolving Facility Obligations has not occurred, whether or not any Insolvency or Liquidation Bankruptcy Proceeding has been commenced by or against the Company any Borrower or any other Grantor, Loan Party: (i) no Second-Priority the Incremental Term Loan Lenders: (A) will not, independently without the express consent and, if requested by the Agent or any Second-Priority Secured Party will the Required Lenders, a joinder by the Required Lenders (x) or the Agent on their behalf), exercise or seek to exercise any rights or remedies (including setoffany right of set-off or recoupment) with respect to any Common Collateral in respect of any applicable Second-Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority the Incremental Term Loan Lenders and/or the Agent or any Second-Priority Secured Party either is a party party) or may have rights as a third party beneficiaryinstitute or commence (or join with any other Person, other than the Required Lenders, in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including any Bankruptcy Proceeding) with respect to any Lien held by it or for its benefit under the Collateral Documents or otherwise; (B) will not contest, protest or object to any foreclosure proceeding or action brought by the Revolving Facility Claimholders or the Agent, on behalf of any or all of the Revolving Facility Claimholders, or any other exercise by the Revolving Facility Claimholders, or the Agent, on behalf of any such partyor all of the Revolving Facility Claimholders, of any rights and remedies relating to the Common Collateral or otherwise under the Senior Lender Documents Collateral Documents, applicable law or otherwise otherwise, provided that the respective interests of the Incremental Term Loan Claimholders attach to the proceeds thereof, subject to the relative priorities described in respect of Senior Lender Claims, or Section 2.18; (zC) will not object to the forbearance by the Senior Lenders Revolving Facility Claimholders, or the Agent, on behalf of the Revolving Facility Claimholders, or the refusal of the Revolving Facility Claimholders, or the Agent, on behalf of the Revolving Facility Claimholders, to consent to any requested act by the Incremental Term Loan Claimholders, or from the Revolving Facility Claimholders, or the Agent, on behalf of the Revolving Facility Claimholders, bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral Collateral; and (D) will not, independently, without the express written consent and, if required by the Agent or the Required Lenders, a joinder by the Required Lenders, file, pursuant to Section 109 or 303 of the Bankruptcy Code or otherwise, a petition in respect order to commence a Bankruptcy Proceeding against any Borrower and/or any other Loan Party (an “Involuntary Insolvency Proceeding”). In the event that any Revolving Facility Claimholder or the Agent, acting on behalf of Senior Lender Claims and the Revolving Facility Claimholders, files a petition with the bankruptcy court pursuant to Section 109 of the Bankruptcy Code in order to commence an Involuntary Insolvency Proceeding, the Incremental Term Loan Claimholders agree that they will not oppose such petition or support any Person opposing such petition. (ii) except as otherwise provided hereinSubject to Section 7.05, the Intercreditor Agent Revolving Lenders and the Senior Lenders Agent, acting on behalf of the Revolving Facility Claimholders, shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of the Incremental Term Loan Claimholders or the Agent, acting on behalf of the Incremental Term Loan Claimholders; except, however, that, if requested by the Agent, the Incremental Term Loan Claimholders shall join and shall otherwise support any Second-Priority Agent or any Second-Priority Secured Partysuch action taken by the Revolving Facility Claimholders; provided, however, that that (A) in any Insolvency or Liquidation Bankruptcy Proceeding commenced by or against the Company any Borrower or any other GrantorLoan Party, each Second-Priority Agent the Incremental Term Loan Claimholders may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Incremental Term Loan Obligations, (B) each Second-Priority Agent the Incremental Term Loan Claimholders may take join in any action (not adverse to undertaken by the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Revolving Facility Claimholders in order to create, prove, perfect, preserve or protect the Lien of the Agent on the Collateral, and (but not enforceC) its rights inthe Incremental Term Loan Claimholders shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, and perfection and priority claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of its Lien onthe claims of the Incremental Term Loan Claimholders, including any claims secured by the Common Collateral, if any, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Revolving Lenders and the Senior Lenders Agent, on behalf of the Revolving Facility Claimholders, may enforce the provisions of the Senior Lender Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. The Incremental Term Loan Claimholders agree that the Revolving Facility Claimholders are not acting as the agent of the Incremental Term Loan Claimholders and do not otherwise owe them any fiduciary duty, and may instead act for all purposes in a manner that maximizes the interests of the Revolving Facility Claimholders. Such exercise and enforcement shall include the rights of an agent appointed by them the Required Lenders to sell or otherwise dispose of Common Collateral upon foreclosure, or to consent to the sale or other disposition of Collateral by or on behalf of any Loan Party, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has The Incremental Term Loan Lenders agree that they will not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral Proceeds in connection with the exercise of any right or remedy (including setoffset-off or recoupment) with respect to any Common Collateral, and that any Collateral in respect or Collateral Proceeds taken or received by the Agent, for the benefit of the applicable Second-Priority ClaimsIncremental Term Loan Claimholders, will be paid over to, or held by, the Agent for the benefit of the Revolving Facility Claimholders, unless and until the Discharge of Revolving Facility Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurredRevolving Facility Obligations, except as expressly provided in the proviso in clause (ii) of Section 3.1(a7.04(a)(ii), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties Incremental Term Loan Claimholders with respect to the Common Collateral is for the Agent to hold a Lien on the Common Collateral in respect of to secure the applicable Second-Priority Claims Incremental Term Loan Obligations owing to them pursuant to the Second-Priority Documents, as applicable, Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurredtherein. (c) Subject to the proviso in clause (ii) of Section 3.1(a7.04(a) and Section 7.05(d), the Incremental Term Loan Lenders agree that (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party the Incremental Term Loan Claimholders will not take any action that would hinder hinder, delay or impede or object to any exercise of remedies undertaken by of the Intercreditor Agent Revolving Facility Claimholders (or the Senior Lenders Agent on behalf of any or all of the Revolving Facility Claimholders or in accordance with respect to the Common Collateral directions of the Required Lenders) under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and whether by the Agent on behalf of the Revolving Facility Claimholders or by any Loan Party with the consent of the Required Lenders, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, the Incremental Term Loan Lenders hereby waives waive any and all rights it or any Second-Priority Secured Party they may have as a junior lien secured creditor or otherwise to object to the manner or order in which the Intercreditor Agent Revolving Loan Claimholders (or the Senior Lenders Agent on behalf of the Revolving Loan Claimholders) seek to enforce or collect the Senior Lender Claims Revolving Facility Obligations or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent The Incremental Term Loan Lenders hereby acknowledges acknowledge and agrees agree that no covenant, agreement or restriction contained in any applicable Second-Priority Document the Loan Documents shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders Revolving Facility Claimholders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender other Loan Documents. (e) If any Incremental Term Loan Claimholder, contrary to this Agreement, commences or participates in any action or proceeding against any Loan Party or the Collateral, the Agent or the Revolving Lenders may interpose in the name of the Revolving Facility Claimholders the making of this Agreement as a defense or dilatory plea. (f) Should any Incremental Term Loan Claimholder, contrary to this Agreement, in any way take, or attempt or threaten to take, any action with respect to the Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement), or fail to take any action required by this Agreement, the Agent or the Revolving Lenders (in its own name or in the name of a Loan Party) may obtain relief against such Incremental Term Loan Claimholder by injunction, specific performance and/or other appropriate equitable relief, it being understood and agreed by the Incremental Term Loan Claimholders that (i) the Revolving Facility Claimholders’ damages from such actions may be difficult to ascertain and may be irreparable, and (ii) the Incremental Term Loan Claimholders waive any defense that the Revolving Facility Claimholders cannot demonstrate damage or can be made whole by the awarding of damages and any requirement for the posting of a bond.

Appears in 2 contracts

Sources: Credit Agreement (Neiman Marcus, Inc.), Credit Agreement (Neiman Marcus, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrowers or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrowers or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, solely to the extent as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and (E) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff and recoupment) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (GoDaddy Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04 and (D) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Credit Agreement (Bright Horizons Family Solutions Inc.), Credit Agreement (Bright Horizons Family Solutions Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter letter, if applicable, or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations, and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff or recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that any Second Priority Representative or any Second Priority Debt Party may exercise any or all such rights after the passage of a period of 120 days from the date of delivery of a notice in writing to the Designated Senior Representative of such Second Priority Representative’s or Second Priority Debt Party’s intention to exercise its right to take such actions, which notice shall specify that an “Event of Default” as defined in the applicable Second Priority Debt Documents has occurred and, as a result of such “Event of Default”, the principal and interest under such Second Priority Debt Documents have become due and payable (whether as a result of acceleration or otherwise) (the “Second Priority Standstill Period”) unless a Senior Representative has commenced and is diligently pursuing remedies with respect to any material portion of the Shared Collateral (or such exercise of remedies is stayed by applicable law or by any proceeding or any Grantor is then the subject of any Insolvency or Liquidation Proceeding); provided, further, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-any Second Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent as provided in Section 5.05, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03, (E) any Second Priority Representative and any Second Priority Debt Party may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding, or other pleading made by any Person objecting to or otherwise seeking the disallowance that is not permitted by this Agreement of the claims or Liens of any Second Priority Debt Party, including any claims secured by the Shared Collateral, (F) any Second Priority Representative and any Second Priority Debt Party may vote on any plan of reorganization or similar dispositive restructuring plan in a manner that is consistent with, and not in violation of, this Agreement (including Section 6.05(b)), with respect to the Second Priority Debt Obligations and the Shared Collateral, (G) any Second Priority Representative and any Second Priority Debt Party may join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Shared Collateral initiated by the Designated Senior Representative or any other Senior Secured Party to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with the exercise of remedies by the Designated Senior Representative or such other Senior Secured Party (it being understood that neither Designated Second Priority Representative nor any other Second Priority Debt Party shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein), and (H) any Second Priority Representative and any Second Priority Debt Party may exercise any remedies after the termination of the Second Priority Standstill Period if and to the extent specifically permitted by this Section 3.01(a), in each case (A) through (H) above to the extent such action is not inconsistent with the terms of this Agreement. Any recovery by any Second Priority Debt Party pursuant to the preceding clause (H) shall be subject to the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditora Second Priority Debt Party, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso provisos in clause (iiSection 3.01(a) of Section 3.1(a)and Sections 6.01 and 6.03, the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the each proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that that, notwithstanding the expiration of the Second Priority Standstill Period, would hinder hinder, delay or interfere with any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, the Designated Senior Representative (or any Person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto; provided, however, that the Second Priority Representative and the Second Priority Debt Parties may exercise any of their rights or remedies with respect to the Shared Collateral to the extent permitted by the provisos in Section 3.01(a) and Sections 6.01 and 6.03. Following the Discharge of Senior Obligations, the Designated Second Priority Representative (or any Person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative (or any Person authorized by it) shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, that nothing in this Section shall impair the ability of the Second Priority Representative and the Second Priority Debt Parties to exercise any of their rights or remedies with respect to the Shared Collateral to the extent permitted by the provisos in Section 3.01(a) or Sections 6.01 and 6.03; provided, further that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: First/Second Lien Intercreditor Agreement (Sotera Health Co), First/Second Lien Intercreditor Agreement (Sotera Health Topco, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that that, in each instance in a manner not otherwise inconsistent with the terms of this Agreement, (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Lien Credit Agreement Secured Parties may exercise their rights and remedies as unsecured creditors to the extent provided in Section 5.04, (D) the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Debt Parties or the avoidance of any Second Priority Lien, (E) in any Insolvency or Liquidation Proceeding, the Second Lien Credit Agreement Secured Parties shall be entitled to vote on any plan of reorganization or similar dispositive plan to the extent consistent with the provisions hereof, and (F) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to any Shared Collateral and (2) no Grantor which has granted a security interest in any Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. Any recovery by the Second Priority Debt Parties pursuant to the preceding clause (F) shall be subject to the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Liberty Global PLC), Second Lien Credit Agreement (Liberty Global PLC)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of enforcement, collection, execution, levy or foreclosure), (y) contest, protest or object to any foreclosure foreclosure, power of sale or other similar proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, provided that the respective interests of the Second Priority Secured Parties attach to the proceeds thereof, subject to the relative priorities described in this Agreement, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure foreclosure, power of sale or other similar proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided hereinherein (including Section 5.1), the Intercreditor each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with with, or the consent consent, of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral (including, without limitation, sending such notices of the existence of, or any evidence or confirmation of, the Second Priority Claims or the Liens of the Second Priority Agent in the Common Collateral to any court or governmental agency, or filing or recording any such notice or evidence to the extent necessary or appropriate to prove or preserve the Liens of the Second Priority Agent in the Common Collateral), (C) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Grantor, the Second Priority Agent may file any necessary or appropriate responsive pleadings in opposition to any motion, proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Party, (D) each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Borrower or any Grantor arising under any applicable Bankruptcy Law or applicable non-bankruptcy law and (E) each Second Priority Agent (pursuant to the instructions of the requisite amount of Second Priority Secured Parties) and each Second Priority Secured Party may vote on any Plan of Reorganization in any Insolvency or Liquidation Proceeding of any Borrower or any other Grantor, in each case (A) through (E) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, power of sale or other enforcement action, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code personal property security laws of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or other collateral or any proceeds of Common Collateral or other collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral or other collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-each Second Priority Agents Agent and the Second-Second Priority Secured Parties with respect to the Common Collateral or any other collateral is to hold a Lien on the Common Collateral or such other collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject So long as the Discharge of Senior Lender Claims has not occurred and subject to the proviso in clause (ii) of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Common Collateral or any other collateral under the Senior Loan Lender Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure foreclosure, power of sale or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-other Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders is adverse to the interests of the Second-Second Priority Secured Parties. (d) Each Second-The Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent First Lien Agents or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents; provided that nothing in this clause shall prevent any Second Priority Secured Party from asserting or seeking to enforce any provision of any Second Priority Document (to the extent not prohibited by this Agreement).

Appears in 2 contracts

Sources: Fifth Amendment Agreement (Eldorado Gold Corp /Fi), Credit Agreement (Eldorado Gold Corp /Fi)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Junior Priority Agent or Representative nor any Second-Junior Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Junior Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Junior Priority Agent Representative or any Second-other Junior Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Junior Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Junior Priority Claims and Debt Obligations under its Junior Priority Debt Facility, (B) each Second-any Junior Priority Agent Representative may take any action (so long as such action is not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the 12 NOTE Include to the extent the Collateral Trust Agreement is in effect on the date of this Agreement. rights of the Intercreditor Agent Senior Representatives or the other Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Junior Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) the Junior Priority Debt Parties may vote with respect to any Plan of Reorganization in a manner that is consistent with and otherwise in accordance with this Agreement, and (F) from and after the Junior Priority Enforcement Date (and subject to the occurrence thereof), the Designated Junior Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (in each case of (A) through (F) above, solely to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a) and in Article VI, each Second-Junior Priority AgentRepresentative, on behalf of itself and each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that it will not, in the context of its role as a secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Junior Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)3.01(a) and in Article VI, the sole right of the Second-Junior Priority Agents Representatives and the Second-Junior Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Junior Priority Claims Debt Obligations pursuant to the Second-Junior Priority Documents, as applicable, Debt Documents for the period set forth, and to the extent granted granted, therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that no Second-neither such Junior Priority Agent or Representative nor any Second-such Junior Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any Second-such Junior Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Junior Priority Secured Debt Parties. (d) Each Second-Junior Priority Agent Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Junior Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Priority Representative who may be instructed by the Junior Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Junior Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Priority Debt Parties or the Junior Priority Debt Obligations (including the Junior Lien Pari Passu Intercreditor Agreement).

Appears in 2 contracts

Sources: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Holdings or any Borrower or other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the any exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Holdings or any Borrower or other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, [and] (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 [and (E) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding]3. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Amendment and Restatement Agreement (Cbre Group, Inc.), Credit Agreement (Cb Richard Ellis Group Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Parent Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04 and (D) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Par Pharmacuetical, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Priority Agent or any Second-Priority the Second Lien Collateral Agent, on behalf of itself and each Second Lien Secured Party will Party, (x) from the date hereof until the occurrence of the Second Lien Enforcement Date will not exercise or seek to exercise any rights or remedies (including including, but not limited to, setoff, recoupment, and the right to credit bid debt, if any) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsSecond Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) will not contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Common Collateral or any other First Lien Collateral by the Intercreditor First Lien Collateral Agent or any Senior Lender First Lien Secured Party in respect of the Senior Lender ClaimsFirst Lien Obligations, the exercise of any right by the Intercreditor First Lien Collateral Agent or any Senior Lender First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims First Lien Obligations under any lockbox control agreement, control lockbox agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority the First Lien Collateral Agent or any Second-Priority First Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies as a secured party relating to the Common Collateral or any other First Lien Collateral under the Senior Lender First Lien Documents or otherwise in respect of Senior Lender Claimsthe First Lien Obligations, or and (z) will not object to the any waiver or forbearance by the Senior Lenders First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or enforcement action or any other exercise of any rights or remedies relating to the Common Collateral or any other First Lien Collateral in respect of Senior Lender Claims First Lien Obligations and (ii) except as otherwise provided herein, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff including, but not limited to, setoff, recoupment, and the any right to credit bid their debt) ), marshal, process and make determinations regarding the release, disposition or restrictions restrictions, or waiver or forbearance of rights or remedies with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Collateral Agent or any Second-Priority Second Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Priority the Second Lien Collateral Agent and any Second Lien Secured Party (in its capacity as an unsecured creditor) may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Second Lien Obligations, (B) each Second-Priority the Second Lien Collateral Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst Lien Obligations, or to the rights of the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties to exercise remedies in respect thereof) , including sending such notices of the existence of, or any evidence or confirmation of, the Second Lien Obligations or the Liens of Second Lien Collateral Agent in the Common Collateral to any court or governmental agency, or file or record any such notice or evidence, in order to create, prove, perfectpreserve, preserve or protect (but not enforce) its rights in, and including the perfection and priority of its any Lien on, the Common Collateral, (C) the Second Lien Secured Parties shall be entitled to file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Lien Secured Parties, including without limitation any claims secured by the Common Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement, (D) the Second Lien Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the applicable Bankruptcy Law or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement, or as may otherwise be consented to by the First Lien Collateral Agent, (E) the Second Lien Collateral Agent or any Second Lien Secured Party shall be entitled to vote on any Plan of Reorganization, in a manner and to the extent consistent with the provisions hereof, and (F) subject in all respects to the terms and conditions of this Agreement, including, without limitation, Sections 2 and 4 hereof, the Second Lien Collateral Agent or any Second Lien Secured Party may exercise any of its rights or remedies with respect to the Common Collateral, solely upon the occurrence and during the effective continuation of the Second Lien Enforcement Date. In exercising rights and remedies with respect to the Senior Lender First Lien Collateral or Common Collateral, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Secured Parties may enforce the provisions of the Senior Lender First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First Lien Obligations has not occurred, each Second-Priority the Second Lien Collateral Agent, on behalf of itself and each applicable Second-Priority Second Lien Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect contravention of the applicable Second-Priority Claimsthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Second Lien Collateral Agent and the Second-Priority Second Lien Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims Second Lien Obligations pursuant to the Second-Priority Second Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Documents and applicable law. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority the Second Lien Collateral Agent, for itself and on behalf of each applicable Second-Priority Second Lien Secured Party, agrees that no Second-Priority none of the Second Lien Collateral Agent or any Second-Priority Second Lien Secured Party will take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies undertaken by the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties with respect to the Common Collateral or the First Lien Collateral under the Senior Loan First Lien Documents, including any collection, sale, lease, exchange, transfer or other disposition of the Common Collateral or the First Lien Collateral, whether by foreclosure or otherwiseotherwise or that would limit, invalidate, avoid or set aside any Lien or Security Document or subordinate the priority of the First Lien Obligations to the Second Lien Obligations or grant the Liens securing the Second Lien Obligations equal ranking to the First Priority Liens, and (ii) each Second-Priority the Second Lien Collateral Agent, for itself and on behalf of each applicable Second-Priority Second Lien Secured Party, hereby waives any and all rights it or any Second-Priority Second Lien Secured Party may have as a junior lien creditor (whether arising under the UCC or under any other law) or otherwise to object to the manner in which the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties seek to enforce or collect the Senior Lender Claims First Lien Obligations or the Liens granted in any of the Senior Lender First Lien Collateral or Common Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Collateral Agent or Senior Lenders First Lien Secured Parties is adverse to the interests of the Second-Priority Second Lien Secured Parties. (d) Each Second-Priority Agent The Second Lien Collateral Agent, on behalf of itself and each Second Lien Secured Party, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Second Lien Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Secured Parties with respect to the Senior Lender First Lien Collateral or Common Collateral as set forth in this Agreement and the Senior Lender First Lien Documents. (e) So long as the Discharge of First Lien Obligations has not occurred, the Second Lien Collateral Agent, on behalf of itself and each applicable Second Lien Secured Party, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under any applicable law, including, but not limited to, the Bankruptcy Code or other Bankruptcy Law, with respect to the Common Collateral or any other similar rights a junior secured creditor may have under such applicable law.

Appears in 2 contracts

Sources: Intercreditor Agreement, Intercreditor Agreement (Advantage Solutions Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender ABL Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Priority neither the Term Loan/Cash Flow Revolver Agent or nor any Second-Priority Secured Party Term Loan/Cash Flow Revolver Lender will (x) exercise Exercise Any Secured Creditor Remedies or seek to exercise any rights or remedies (including setoff) Exercise Any Secured Creditor Remedies with respect to any Common Collateral in respect of any applicable Second-ABL Facility First Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)Collateral, (y) contest, protest or object to any foreclosure proceeding or action brought Exercise of Any Secured Creditor Remedies with respect to the Common ABL Facility First Priority Collateral by the Intercreditor ABL Agent or any Senior ABL Lender in respect of the Senior Lender ABL Priority Claims, the exercise of any right by the Intercreditor ABL Agent or any Senior ABL Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender ABL Priority Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter agreement or similar agreement or arrangement to which any Second-Priority the Term Loan/Cash Flow Revolver Agent or any Second-Priority Secured Party Term Loan/Cash Flow Revolver Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common ABL Facility First Priority Collateral under the Senior Lender ABL Loan Documents or otherwise in respect of Senior Lender ABL Priority Claims, or (z) object to the forbearance by the Senior ABL Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise Exercise of any rights or remedies Any Secured Creditor Remedies relating to the Common ABL Facility First Priority Collateral in respect of Senior Lender ABL Priority Claims and (ii) except as otherwise provided herein, the Intercreditor ABL Agent and the Senior ABL Lenders shall have the exclusive right to enforce rights, exercise remedies Exercise Any Secured Creditor Remedies (including setoff and the right to credit bid their debt) and in connection therewith make determinations regarding the release, disposition or restrictions with respect to the Common ABL Facility First Priority Collateral without any consultation with or the consent of any Second-Priority the Term Loan/Cash Flow Revolver Agent or any Second-Priority Secured PartyTerm Loan/Cash Flow Revolver Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Priority the Term Loan/Cash Flow Revolver Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Term Loan/Cash Flow Revolver Claims and (B) each Second-Priority the Term Loan/Cash Flow Revolver Agent may take any action (not adverse to the prior Liens on the Common ABL Facility First Priority Collateral securing the Senior Lender ABL Priority Claims, or the rights of the Intercreditor ABL Agent or the Senior ABL Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common ABL Facility First Priority Collateral. In exercising rights and remedies with respect to the Senior Lender ABL Facility First Priority Collateral, the Intercreditor ABL Agent and the Senior ABL Lenders may enforce the provisions of the Senior Lender ABL Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common ABL Facility First Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Term Priority Claims has not occurred, each Secondwhether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Borrower or any other Grantor, (i) neither the ABL Agent nor any ABL Lender will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies with respect to any Term/Cash Flow Revolver Facility First Priority Collateral, (y) contest, protest or object to any Exercise of Any Secured Creditor Remedies with respect to the Term/Cash Flow Revolver Facility First Priority Collateral by the Term Loan/Cash Flow Revolver Agent or any Term Loan/Cash Flow Revolver Lender in respect of the Term Loan/Cash Flow Revolver Priority Claims, the exercise of any right by the Term Loan/Cash Flow Revolver Agent or any Term Loan/Cash Flow Revolver Lender (or any agent or sub-agent on their behalf) in respect of the Term Loan/Cash Flow Revolver Priority Claims under any control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the ABL Agent or any ABL Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Term/Cash Flow Revolver Facility First Priority Collateral under the Term Loan/Cash Flow Revolver Loan Documents or otherwise in respect of Term Loan/Cash Flow Revolver Priority Claims, or (z) object to the forbearance by the Term Loan/Cash Flow Revolver Lenders from bringing or pursuing any Exercise of Any Secured Creditor Remedies relating to the Term/Cash Flow Revolver Facility First Priority Collateral in respect of Term Loan/Cash Flow Revolver Priority Claims and (ii) except as otherwise provided herein, the Term Loan/Cash Flow Revolver Agent and the Term Loan/Cash Flow Revolver Lenders shall have the exclusive right to Exercise Any Secured Creditor Remedies (including setoff and the right to credit bid their debt) and in connection therewith make determinations regarding the release, disposition or restrictions with respect to the Term/Cash Flow Revolver Facility First Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, the ABL Agent may file a proof of claim or statement of interest with respect to the applicable ABL Claims and (B) the ABL Agent may take any action (not adverse to the prior Liens on the Term/Cash Flow Revolver Facility First Priority Collateral securing the Term Loan/Cash Flow Revolver Priority Claims, or the rights of the Term Loan/Cash Flow Revolver Agent or the Term Loan/Cash Flow Revolver Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Term/Cash Flow Revolver Facility First Priority Collateral. In exercising rights and remedies with respect to the Term/Cash Flow Revolver Facility First Priority Collateral, the Term Loan/Cash Flow Revolver Agent and the Term Loan/Cash Flow Revolver Lenders may enforce the provisions of the Term Loan/Cash Flow Revolver Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term/Cash Flow Revolver Facility First Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (c) So long as the Discharge of ABL Priority Claims has not occurred, the Term Loan/Cash Flow Revolver Agent, on behalf of itself and each applicable Second-Priority Secured PartyTerm Loan/Cash Flow Revolver Lender, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common ABL Facility First Priority Collateral or any proceeds of Common ABL Facility First Priority Collateral in connection with the exercise Exercise of any right or remedy Any Secured Creditor Remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-ABL Facility First Priority ClaimsCollateral. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender ABL Priority Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Term Loan/Cash Flow Revolver Agent and the Second-Priority Secured Parties Term Loan/Cash Flow Revolver Lenders with respect to the Common ABL Facility First Priority Collateral is to hold a Lien on the Common ABL Facility First Priority Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Term Loan/Cash Flow Revolver Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender ABL Priority Claims has occurred. So long as the Discharge of Term Priority Claims has not occurred, the ABL Agent, on behalf of itself and each ABL Lender, agrees that it will not take or receive any Term/Cash Flow Revolver Facility First Priority Collateral or any proceeds of Term/Cash Flow Revolver Facility First Priority Collateral in connection with the Exercise of Any Secured Creditor Remedies (including setoff or recoupment) with respect to any Term/Cash Flow Revolver Facility First Priority Collateral. Without limiting the generality of the foregoing, unless and until the Discharge of Term Priority Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(b), the sole right of the ABL Agent and the ABL Lenders with respect to the Term/Cash Flow Revolver Facility First Priority Collateral is to hold a Lien on the Term/Cash Flow Revolver Facility First Priority Collateral pursuant to the ABL Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Priority Claims has occurred. (cd) Subject to the proviso in clause (ii) of Section 3.1(a)) above, (i) each Second-Priority the Term Loan/Cash Flow Revolver Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan/Cash Flow Revolver Lender, agrees that no Second-Priority the Term Loan/Cash Flow Revolver Agent or any Second-Priority Secured Party and the Term Loan/Cash Flow Revolver Lenders will not take any action that would hinder any exercise Exercise of remedies Any Secured Creditor Remedies undertaken by the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Common ABL Facility First Priority Collateral under the Senior ABL Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common ABL Facility First Priority Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority the Term Loan/Cash Flow Revolver Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan/Cash Flow Revolver Lender, hereby waives any and all rights it or any Second-Priority Secured Party Term Loan/Cash Flow Revolver Lender may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor ABL Agent or the Senior ABL Lenders seek to enforce or collect the Senior Lender ABL Priority Claims with respect to the ABL Facility First Priority Collateral or the Liens granted in any of the Senior Lender ABL Facility First Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor ABL Agent or Senior the ABL Lenders is adverse to the interests of the Second-Term Loan/Cash Flow Revolver Lenders. Subject to the proviso in clause (ii) of Section 3.1(b) above, (i) the ABL Agent, for itself and on behalf of each ABL Lender, agrees that the ABL Agent and the ABL Lenders will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by the Term Loan/Cash Flow Revolver Agent or the Term Loan/Cash Flow Revolver Lenders with respect to the Term/Cash Flow Revolver Facility First Priority Secured PartiesCollateral under the Term Loan/Cash Flow Revolver Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Term/Cash Flow Revolver Facility First Priority Collateral, whether by foreclosure or otherwise, and (ii) the ABL Agent, for itself and on behalf of each ABL Lender, hereby waives any and all rights it or any ABL Lender may have as a junior lien creditor or otherwise to object to the manner in which the Term Loan/Cash Flow Revolver Agent or the Term Loan/Cash Flow Revolver Lenders seek to enforce or collect the Term Loan/Cash Flow Revolver Priority Claims with respect to the Term/Cash Flow Revolver Facility First Priority Collateral or the Liens granted in any of the Term/Cash Flow Revolver Facility First Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Term Loan/Cash Flow Revolver Agent or the Term Loan/Cash Flow Revolver Lenders is adverse to the interests of the Term Loan/Cash Flow Revolver Lenders. (de) Each Second-Priority The Term Loan/Cash Flow Revolver Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Term Loan/Cash Flow Revolver Loan Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Senior Lender ABL Facility First Priority Collateral as set forth in this Agreement and the Senior Lender ABL Loan Documents. The ABL Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ABL Loan Document shall be deemed to restrict in any way the rights and remedies of the Term Loan/Cash Flow Revolver Agent or the Term Loan/Cash Flow Revolver Lenders with respect to the Term/Cash Flow Revolver Facility First Priority Collateral as set forth in this Agreement and the Term Loan/Cash Flow Revolver Loan Documents.

Appears in 2 contracts

Sources: Abl Credit Agreement (Quorum Health Corp), Credit Agreement (Quorum Health Corp)

Exercise of Remedies. (a) So With respect to any Senior Collateral, so long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Junior Priority Agent or Representative nor any Second-Junior Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) Secured Creditor Remedies with respect to any Common such Senior Collateral in respect of any applicable Second-Junior Priority ClaimsDebt Obligations secured by such Senior Collateral, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to (A) any foreclosure proceeding or action brought with respect to the Common such Senior Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, (B) the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, beneficiary or (C) any other exercise by any such party, party of any rights and remedies relating to the Common such Senior Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common such Senior Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common such Senior Collateral without any consultation with or the consent of any Second-Junior Priority Agent Representative or any Second-other Junior Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Junior Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Junior Priority Claims and Debt Obligations under its Junior Priority Debt Facility, (B) each Second-any Junior Priority Agent Representative may take any action (so long as such action is not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the other Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Junior Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this Agreement and (E) the Junior Priority Debt Parties may vote with respect to any Plan of Reorganization in a manner that is consistent with and otherwise in accordance with this Agreement (in each case of (A) through (E) above, solely to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement and it being understood and agreed that that the temporary deposit of Proceeds of Term Priority Collateral in a Deposit Account controlled by the ABL Representative shall not constitute a breach of this Agreement so long as such Proceeds are promptly (but in no event later than five Business Days after (i) receipt and (ii) the ABL Representative having actual knowledge that such amount constitutes Proceeds of Term Priority Collateral) remitted to the Designated Term Priority Representative). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion; provided that each of the ABL Representative and the Term Priority Representative agrees to provide to the other (x) a written notice (an “Enforcement Notice”) prior to the commencement of an exercise of any Secured Creditor Remedies and (y) copies of any notices that it is required under Applicable Law to deliver to any Grantor promptly after delivery thereof; provided, further, however, that (I) the ABL Representative’s failure to provide any such copies to the Term Priority Representatives (but not the Enforcement Notice) shall not impair any of the ABL Representative’s rights hereunder or under any of the ABL Debt Documents and (II) the Term Priority Representative’s failure to provide any such copies to the ABL Representative (but not the Enforcement Notice) shall not impair any Term Priority Representative’s rights hereunder or under any of the Term Priority Debt Documents. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Senior Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So With respect to any Senior Collateral, so long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a) and in Article VI, each Second-Junior Priority AgentRepresentative, on behalf of itself and each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that it will not, in the context of its role as a secured creditor, take or receive any Common Senior Collateral or any proceeds Proceeds of Common Senior Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Senior Collateral in respect of the applicable Second-Junior Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, with respect to any Senior Collateral, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)3.01(a) and in Article VI, the sole right of the Second-Junior Priority Agents Representatives and the Second-Junior Priority Secured Debt Parties with respect to the Common Senior Collateral is to hold a Lien on the Common Senior Collateral in respect of the applicable Second-Junior Priority Claims Debt Obligations pursuant to the Second-Junior Priority Documents, as applicable, Debt Documents for the period set forth, and to the extent granted granted, therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that no Second-neither such Junior Priority Agent or Representative nor any Second-such Junior Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Senior Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Senior Collateral, whether by foreclosure or otherwise, and (ii) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any Second-such Junior Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Junior Priority Secured Debt Parties. (d) Each Second-Junior Priority Agent Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Junior Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), with respect to any Senior Collateral, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to such Senior Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations with respect to any Senior Collateral, the Designated Junior Priority Representative shall have the exclusive right to exercise any right or remedy with respect to such Senior Collateral, and the Designated Junior Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to such Senior Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Senior Collateral after the Discharge of Senior Obligations in respect of such Senior Collateral as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Term Priority Debt Parties or the Term Priority Debt Obligations (including the First Lien Intercreditor Agreements and Junior Lien Intercreditor Agreements).

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Avaya Holdings Corp.), Abl Credit Agreement (Avaya Holdings Corp.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and (E) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: Credit Agreement (Rockwood Holdings, Inc.), Amendment Agreement (First Data Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company a Borrower or any other Grantor, (i) no Second-neither any Junior Priority Agent or Representative nor any Second-Junior Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Junior Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Junior Priority Agent Representative or any Second-Junior Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company a Borrower or any other Grantor, each Second-any Junior Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Junior Priority Claims and Debt Obligations under its Junior Priority Debt Facility, (B) each Second-any Junior Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Junior Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) the Junior Priority Debt Parties may vote with respect to any Plan of Reorganization in a manner that is consistent with and otherwise in accordance with this Agreement, and (F) from and after the Junior Priority Enforcement Date, the Designated Junior Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding (in each case of (A) through (F) above, solely to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a) and in Article VI, each Second-Junior Priority AgentRepresentative, on behalf of itself and each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Junior Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)3.01(a) and in Article VI, the sole right of the Second-Junior Priority Agents Representatives and the Second-Junior Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Junior Priority Claims Debt Obligations pursuant to the Second-Junior Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that no Second-neither such Junior Priority Agent or Representative nor any Second-such Junior Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any Second-such Junior Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Junior Priority Secured Debt Parties. (d) Each Second-Junior Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Junior Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Priority Representative who may be instructed by the Junior Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Junior Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Priority Debt Parties or the Junior Priority Debt Obligations.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Transfirst Holdings Corp.), First Lien Credit Agreement (Transfirst Holdings Corp.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (xw) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (yx) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, management agreement, lease, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, (y) commence, or otherwise join in, any involuntary Insolvency or Liquidation Proceeding with respect to any Grantor or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims (collectively, “Enforcement Actions”) and (ii) except as otherwise provided hereinin the proviso to this clause (ii), the Intercreditor each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral and to direct the time, method, and place for exercising such right or remedy or conducting any proceeding with respect thereto, without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders to exercise remedies in respect thereof) as necessary in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral, (C) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second Priority Agent may file any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Parties, (D) except as provided in clause (i)(y) of this subsection (a), each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Company or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law and (E) each Second Priority Agent and each Second Priority Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Company or any other Grantor, in each case (A) through (E) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or other collateral or any proceeds of Common Collateral or other collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral or other collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties with respect to the Common Collateral or any other collateral is to hold a Lien on the Common Collateral or such other collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, (i) agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Common Collateral or any other collateral under the Senior Loan Lender Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders is adverse to the interests of the Second-Second Priority Secured Parties, and (iii) hereby acknowledges that any Senior Lender may direct the First Lien Designated Agent to take actions to enforce rights or exercise remedies (v) in any manner in its sole discretion in compliance with applicable law, (w) without consultation with or the consent of any Second Priority Secured Parties, (x) regardless of whether or not an Insolvency or Liquidation Proceeding has commenced, (y) regardless of any provision of any Second Priority Debt Documents (other than this Agreement) and (z) regardless of whether or not such exercise is adverse to the interest of any Second Priority Secured Parties. (d) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Second Lien Intercreditor Agreement, Second Lien Intercreditor Agreement (Vici Properties Inc.)

Exercise of Remedies. (a) So long as Prior to the Discharge of Senior Lender Claims has not occurredTermination Date, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorObligor, (i) no Second-Priority Agent or any Second-Priority Secured Party the Trustee and the Noteholders will not (xA) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, or institute any action or proceeding with respect to such rights or remedies (including remedies, including, without limitation, any action of foreclosure), (yB) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor either Agent or any Senior Lender in respect of the Senior Lender ClaimsLender, the or any exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control cash management agreement, landlord waiver or bailee’s 's letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claimsotherwise, or (zC) object to the forbearance by the Agents and the Senior Lenders or any of them from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Collateral. Prior to the Senior Lender Claims and (ii) except as otherwise provided hereinTermination Date, the Intercreditor Agent Agents and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including including, without limitation, setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent the Trustee or any Second-Priority Secured PartyNoteholder. The Trustee, for itself and on behalf of the Noteholders, agrees that, unless and until the Senior Lender Termination Date has occurred: the Trustee and the Noteholders will not commence, or join with any Person (other than the Senior Lenders and the Agents upon the request thereof) in commencing any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it under any of the Noteholder Documents or otherwise; providedand the Trustee and the Noteholders will not take any action that would hinder any exercise of remedies undertaken by the Agents or any Senior Lender under any of the Senior Lender Documents, including any sale, lease, exchange, transfer, or other disposition of any Common Collateral, whether by foreclosure or otherwise. Notwithstanding the foregoing, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Obligor, the Company or any other Grantor, each Second-Priority Agent Trustee may file a claim or statement of interest with respect to the applicable Second-Priority Claims Noteholder Debt, and (B) each Second-Priority Agent the Trustee may take any action (action, not adverse to the prior Liens on the Common Collateral securing any of the Senior Lender ClaimsDebt and otherwise not inconsistent with the terms and conditions of this Agreement, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Trustee's Liens in the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor Agent Agents and the Senior Lenders or any of them may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include include, without limitation, the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender party under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws Code or similar laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Termination Date has occurred, except as expressly provided above in the proviso in clause (ii) of this Section 3.1(a), the sole right of the Second-Priority Agents Trustee and the Second-Priority Secured Parties Noteholders with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Noteholder Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims Termination Date has occurred. (cb) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority AgentThe Trustee, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured PartyNoteholders, hereby waives any and all rights it or any Second-Priority Secured Party of the Noteholders may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Agents or any of the Senior Lenders seek to enforce or collect the any Senior Lender Claims Debt or the any Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 2 contracts

Sources: Intercreditor Agreement (International Wire Rome Operations, Inc.), Intercreditor Agreement (International Wire Group Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender ABL Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 5.6, (i) no Second-Priority Term Loan Agent or any Second-Priority Secured Party Term Loan Lender will (x) exercise Exercise Any Secured Creditor Remedies or seek to exercise any rights or remedies Exercise Any Secured Creditor Remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of ABL Priority Collateral, or exercise any applicable Second-Priority Claimsright under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common ABL Priority Collateral by the Intercreditor ABL Agent or any Senior ABL Lender in respect of the Senior Lender ABL Claims, the exercise of any right by the Intercreditor ABL Agent or any Senior ABL Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender ABL Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority a Term Loan Agent or any Second-Priority Secured Party Term Loan Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common ABL Priority Collateral under the Senior Lender ABL Loan Documents or otherwise in respect of Senior Lender ABL Claims, so long as any proceeds received by the ABL Agent in excess of those necessary to achieve a Discharge of ABL Claims are distributed in accordance with Section 4.2 and applicable law or (z) object to the forbearance by the Senior ABL Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise Exercise of any rights or remedies Any Secured Creditor Remedies relating to the Common ABL Priority Collateral in respect of Senior Lender ABL Claims and (ii) except as otherwise provided herein, the Intercreditor ABL Agent and the Senior ABL Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and and, subject to clause (C) of the proviso in Section 3.1(b), the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common ABL Priority Collateral without any consultation with or the consent of any Second-Priority Term Loan Agent or any Second-Priority Secured PartyTerm Loan Lender; provided, however, that in the case of the foregoing clauses (i) and (ii), (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority a Term Loan Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Term Loan Claims and may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Term Loan Lenders, including any claims secured by the ABL Priority Collateral, in accordance with the terms of this Agreement, (B) each Second-Priority a Term Loan Agent may take any action (not adverse to the prior Liens on the Common ABL Priority Collateral securing the Senior Lender ABL Claims, or the rights of the Intercreditor ABL Agent or the Senior ABL Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common ABL Priority Collateral and (C) a Term Loan Agent or any Term Loan Lender may bid for or purchase ABL Priority Collateral at any public, private or judicial foreclosure on such Collateral initiated by the ABL Agent or any sale of ABL Priority Collateral during an Insolvency or Liquidation proceeding (provided that such bid may not include a “credit bid” in respect of any Term Loan Claims unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Claims); provided, further, that a Term Loan Agent or any Term Loan Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which a Term Loan Agent declared the existence of an “Event of Default” under the applicable Term Loan Documents, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all Term Loan Obligations, and demanded payment thereof and (ii) the date on which the ABL Agent has received notice thereof from such Term Loan Agent (such notice, a “Term Loan Enforcement Notice”); provided, further, however, that neither any Term Loan Agent nor any other Term Loan Lender shall exercise any rights or remedies with respect to the ABL Priority Collateral if, notwithstanding the expiration of such 180-day period, the ABL Agent or the other ABL Lenders (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the ABL Priority Collateral (prompt written notice of such exercise to be given to the Term Loan Agents), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (the period during which the Term Loan Agents and the Term Loan Lenders may not pursuant to this Section 3.1(a) exercise any rights, powers, or remedies with respect to the ABL Priority Collateral, the “Term Loan Standstill Period”). In exercising rights and remedies with respect to the Senior Lender ABL Priority Collateral, the Intercreditor ABL Agent and the Senior ABL Lenders may enforce the provisions of the Senior Lender ABL Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common ABL Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Term Loan Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to and without limiting the rights of the ABL Agent under Section 5.6, (i) neither the ABL Agent nor any ABL Lender will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies (including setoff or recoupment) with respect to any Term Loan Priority Collateral, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Term Loan Priority Collateral by a Term Loan Agent or any Term Loan Lender in respect of the Term Loan Claims, the exercise of any right by a Term Loan Agent or any Term Loan Lender (or any agent or sub-agent on their behalf) in respect of the Term Loan Claims, under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the ABL Agent or any ABL Lender either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Term Loan Priority Collateral under the Term Loan Documents or otherwise in respect of Term Loan Claims, so long as any proceeds received by such Term Loan Agent in excess of those necessary to achieve a Discharge of Term Loan Claims are distributed in accordance with Section 4.3 and applicable law or (z) object to the forbearance by the Term Loan Lenders from bringing or pursuing any foreclosure proceeding or action or any other Exercise of Any Secured Creditor Remedies relating to the Term Loan Priority Collateral in respect of Term Loan Claims and (ii) except as otherwise provided herein, the Term Loan Agents and the Term Loan Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and, subject to clause (C) of the proviso in Section 3.1(a), the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Term Loan Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the ABL Agent may file a proof of claim or statement of interest with respect to the applicable ABL Claims and may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the ABL Lenders, including any claims secured by the Term Loan Priority Collateral, in accordance with the terms of this Agreement, (B) the ABL Agent may take any action (not adverse to the prior Liens on the Term Loan Priority Collateral securing the Term Loan Claims, or the rights of the Term Loan Agents or the Term Loan Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Term Loan Priority Collateral and (C) the ABL Agent or any ABL Lender may bid for or purchase Term Loan Priority Collateral at any public, private or judicial foreclosure on such Collateral initiated by any Term Loan Agent or any sale of Term Loan Priority Collateral during an Insolvency or Liquidation proceeding (provided that such bid may not include a “credit bid” in respect of any ABL Claims unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Claims); provided, further, that the ABL Agent or any ABL Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which the ABL Agent declared the existence of an “Event of Default” under the applicable ABL Loan Documents, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all ABL Claims under the ABL Credit Agreement, and demanded payment thereof and (ii) the date on which each of the Term Loan Agents have received notice thereof from the ABL Agent (such notice, an “ABL Enforcement Notice”); provided, further, however, that neither the ABL Agent nor any other ABL Lender shall exercise any rights or remedies with respect to the Term Loan Priority Collateral if, notwithstanding the expiration of such 180-day period, the Term Loan Agents or the other Term Loan Lenders (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the Term Loan Priority Collateral (prompt written notice of such exercise to be given to the ABL Agent), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (the period during which the ABL Agent and the ABL Lenders may not pursuant to this Section 3.1(b) exercise any rights, powers, or remedies with respect to the Term Loan Priority Collateral, the “ABL Standstill Period”). In exercising rights and remedies with respect to the Term Loan Priority Collateral, the Term Loan Agents and the Term Loan Lenders may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion consistent with the terms of the Term Loan Documents. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (c) So long as the Discharge of ABL Claims has not occurred, each Second-Priority Term Loan Agent, on behalf of itself and each applicable Second-Priority Secured PartyTerm Loan Lender, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common ABL Priority Collateral or any proceeds of Common ABL Priority Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-ABL Priority ClaimsCollateral. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender ABL Claims has occurred, except as expressly provided in the proviso provisos in clause (ii) each of Section 3.1(a) and Section 6.3(c)(i)(1), the sole right of the Second-Priority Agents each Term Loan Agent and the Second-Priority Secured Parties Term Loan Lenders with respect to the Common ABL Priority Collateral is to hold a Lien on the Common ABL Priority Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Term Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender ABL Claims has occurred. So long as the Discharge of Term Loan Claims has not occurred, the ABL Agent, on behalf of itself and each applicable ABL Lender, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Term Loan Priority Collateral. Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan Claims has occurred, except as expressly provided in the provisos in each of Section 3.1(b) and Section 6.3(c)(ii)(1), the sole right of the ABL Agent and the ABL Lenders with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Loan Claims has occurred. (cd) Subject to the proviso provisos in clause (ii) each of Section 3.1(a)) and Section 5.6, (i) each Second-Priority Term Loan Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan Lender, (i) agrees that no Second-Priority Agent or any Second-Priority Secured Party the Term Loan Agents and the Term Loan Lenders will not take any action that would hinder any exercise Exercise of remedies Any Secured Creditor Remedies undertaken by the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Common ABL Priority Collateral under the Senior ABL Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common ABL Priority Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party such Term Loan Lender may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor ABL Agent or the Senior ABL Lenders seek to enforce or collect the Senior Lender ABL Claims with respect to the ABL Priority Collateral or the Liens granted in any of the Senior Lender ABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor ABL Agent or Senior ABL Lenders is adverse to the interests of the Second-Priority Secured Parties. Term Loan Lenders. Subject to the provisos in each of Section 3.1(b) and Section 5.6, the ABL Agent, for itself and on behalf of each applicable ABL Lender, (di) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the ABL Agent and the ABL Lenders will not take any applicable Second-Priority Document shall be deemed to restrict in action that would hinder any way the rights and remedies Exercise of the Intercreditor Any Secured Creditor Remedies undertaken by any Term Loan Agent or the Senior Term Loan Lenders with respect to the Senior Term Loan Priority Collateral under the Term Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, and (ii) hereby waives any and all rights it or any ABL Lender may have as a junior lien creditor or otherwise to object to the manner in which the Term Loan Agents or the Term Loan Lenders seek to enforce or collect the Term Loan Claims with respect to the Term Loan Priority Collateral as set forth or the Liens granted in this Agreement and any of the Senior Lender Documents.Term Loan Priority Collateral, regardless of whether any action or failure

Appears in 2 contracts

Sources: Intercreditor Agreement (PET Acquisition LLC), Intercreditor Agreement (PET Acquisition LLC)

Exercise of Remedies. (a) So long as Until the Discharge Payment in Full of Senior Lender Claims Loan Document Priority Debt has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent or any of its Subsidiaries, neither T▇▇▇▇▇▇ nor any other Grantor, (i) no Second-Priority Agent or any Second-Priority Secured Party Seller will (xa) exercise or seek to exercise any rights or remedies (including setoffany secured creditor remedies) with respect to any Common Collateral in respect of any applicable Second-Priority Claimsthe Collateral, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (yb) contest, protest protest, or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by rights or remedies or forbearance from the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without by any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralLoan Document Claimholder. In exercising connection with any exercise of rights and or remedies with respect to the Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders Loan Document Claimholders may enforce the provisions of the Senior Lender Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include The foregoing to the contrary notwithstanding, T▇▇▇▇▇▇ may (i) take any action (not adverse to the priority status of the Liens in the Collateral securing the Loan Document Priority Debt, or the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and any Loan Document Claimholder to exercise all the rights and or remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is Collateral) in order to hold a Lien on the Common Collateral create or perfect their Liens in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and Collateral, (ii) file any necessary responsive or defensive pleadings in opposition to receive a share any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance of the proceeds thereofclaims of T▇▇▇▇▇▇ or any other Seller, including any claims secured by the Collateral, if any, after the Discharge of Senior Lender Claims (iii) if an Insolvency Proceeding has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent been commenced by or against Borrower or any Second-Priority Secured Party will take any action that would hinder any exercise Guarantor, file a claim or statement of remedies undertaken by the Intercreditor Agent or the Senior Lenders interest with respect to the Common Collateral under the Senior Loan DocumentsT▇▇▇▇▇▇ Debt, including (iv) vote on any saleplan of reorganization and make any filings and motions that are, leasein each case, exchange, transfer or other disposition not in contravention of the Common Collateralprovisions of this Agreement, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement T▇▇▇▇▇▇ Debt and the Senior Lender DocumentsCollateral, or (v) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Collateral initiated by a Loan Document Claimholder to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with such enforcement action by such Loan Document Claimholder (it being understood that neither T▇▇▇▇▇▇ nor any other Seller shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein).

Appears in 2 contracts

Sources: Intercreditor and Subordination Agreement (Nevada Gold & Casinos Inc), Intercreditor and Subordination Agreement (Nevada Gold & Casinos Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company any Borrower or any other Grantor, (i) no Second-except as provided in clause (ii) below, neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (w) take (or join with any Person taking) any Enforcement Action in respect of any Secured Obligations of any Grantor or Shared Collateral in respect of any Second Priority Debt (including, without limitation, any claims for unpaid amounts due to any Second Priority Representative and/or any Second Priority Debt Party by any Grantor), (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt, including, without limitation, under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement with respect to Shared Collateral to which the Second Priority Representative or any Senior Secured Party either is a party or may have rights as a third party beneficiary, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any Enforcement Action in respect of the Senior Collateral or any foreclosure proceeding or action brought with respect to the Common Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right or remedy by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations, including, without limitation, under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Senior Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender Claims, Collateral under the Senior Debt Documents or the Senior Obligations or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured PartyDebt Party (but subject always to the provisions of Section 5.01); provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company any Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt under its Second Priority Debt Document against such Borrower or Guarantor (as the case may be), (B) each Second-the Second Priority Agent Debt Parties may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof, or otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in Section 5.01(a)) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors in respect of a Grantor to the extent provided in Section 5.04, (D) the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement (without prejudice to the automatic release of Second Priority Liens provided in Section 5.01(a)), (E) the Designated Senior Representative will (1) use its reasonable efforts to advise the Designated Second Priority Representative at reasonable intervals of the status of any lien enforcement actions conducted by the Designated Senior Representative (provided that the failure of the Designated Senior Representative to so advise the Designated Second Priority Representative shall not impair or affect the Designated Second Priority Representative’s or any Second Priority Debt Party’s obligations to the Designated Senior Representative and the Senior Secured Parties, the Senior Secured Parties’ rights hereunder, the enforceability of this Agreement or any liens created or granted hereby or under any Senior Collateral Document) and (2) prior to foreclosing upon, or otherwise taking Enforcement Action in respect of, all or a material portion of the Shared Collateral, provide the Designated Second Priority Representative with at least five (5) Business Days’ written notice of its intent to commence such foreclosure or other such Enforcement Action, (F) the Designated Second Priority Representative may vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions in respect of a Grantor that are, in each case, solely pursuant to the Bankruptcy Code or other applicable Debtor Relief Law and in accordance with the terms of this Agreement, with respect to the Second Priority Debt and the Shared Collateral, (G) the Second Priority Debt Parties may join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Shared Collateral initiated by any Senior Representative or any Senior Secured Party to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an Enforcement Action by any Senior Representative or any Senior Secured Party and (H) solely during the Second Priority Enforcement Period, the Designated Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral, Second Priority Debt, or any unpaid amounts due to the Designated Second Priority Representative and/or any Second Priority Debt Party, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), provided, that, the Designated Second Priority Representative will (1) use its reasonable efforts to advise the Designated Senior Representative at reasonable intervals of the status of any lien enforcement actions or Enforcement Action in respect of the Shared Collateral conducted by the Designated Second Priority Representative (provided that the failure of the Designated Second Priority Representative to so advise the Designated Senior Representative shall not impair or affect the Second Priority Debt Parties’ rights hereunder, the enforceability of this Agreement or any liens created or granted hereby or under any Second Priority Collateral Document) and (2) prior to foreclosing upon, or otherwise taking Enforcement Action in respect of, all or a material portion of the Shared Collateral or taking Enforcement Action in respect of the Shared Collateral, provide the Designated Senior Representative with at least five (5) Business Days’ written notice of its intent to commence such foreclosure or Enforcement Action. In exercising rights and remedies with respect to the Senior Lender CollateralCollateral as permitted under this Agreement, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. In exercising rights and remedies with respect to the Second Priority Collateral as permitted under this Agreement, the Second Priority Representatives and the Second Priority Secured Parties may enforce the provisions of the Second Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction (or any other relevant law) and of a secured creditor under Bankruptcy Debtor Relief Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First Lien Credit Agreement Obligations has not occurred, except as expressly provided in the proviso to clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Financing Agreement, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First Lien Credit Agreement Obligations has occurred, except as expressly provided in the proviso in to clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims First Lien Credit Agreement Obligations has occurred. (c) Subject to Except as provided in the proviso in to clause (ii) of Section 3.1(a3.01(a), so long as the Discharge of the First Lien Credit Agreement Obligations has not occurred (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Financing Agreement, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralShared Collateral (including any Distressed Disposal), whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Financing Agreement, will not, and hereby waives waives, to the fullest extent permitted by law, any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to to, (x) object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured PartiesDebt Parties (provided that a Second Priority Representative may object to any such action or failure to act by a Senior Representative or Senior Priority Debt Party which is prohibited by the express terms of this Agreement) or (y) demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable Requirements of Law with respect to the Shared Collateral or any similar rights a junior secured creditor may have under applicable Requirements of Law. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral and the Shared Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to the proviso in clause (ii) of Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of First Lien Credit Agreement Obligations, the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral, and the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Shared Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Shared Collateral and the Secured Obligations after the Discharge of First Lien Credit Agreement Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement (including the Collateral Trust Agreement) governing the Second Priority Debt Parties or the Second Priority Debt. (f) None of the Senior Representatives nor any of the other Senior Secured Parties shall be required to marshal any present or future collateral security for any obligations of any Borrower or any Subsidiary to any Senior Representative or any Senior Secured Party under the Senior Debt Documents or any assurance of payment in respect thereof, or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising. (g) Notwithstanding anything to the contrary herein, the Designated Second Priority Representative and each Second Priority Debt Parties shall be entitled to bid for or purchase Shared Collateral for cash at any private or judicial foreclosure sale; provided that, the proceeds of such bid are sufficient for, and applied to, the Discharge of First Lien Credit Agreement Obligations in their entirety in accordance with the terms of the Senior Debt Documents.

Appears in 2 contracts

Sources: Intercreditor Agreement, Intercreditor Agreement (Toys R Us Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender ABL Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Lead Borrower, the Canadian Borrowers, the Additional US Borrowers, any other ABL Borrower or any other Grantor, subject to Section 5.6, (i) no Second-Priority Term Loan Agent or any Second-Priority Secured Party Term Loan Lender will (x) exercise Exercise Any Secured Creditor Remedies or seek to exercise any rights or remedies Exercise Any Secured Creditor Remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of any applicable Second-ABL Priority ClaimsCollateral, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common ABL Priority Collateral by the Intercreditor ABL Agent or any Senior ABL Lender in respect of the Senior Lender ABL Claims, the exercise of any right by the Intercreditor ABL Agent or any Senior ABL Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiaryABL Claims, or any other exercise by any such party, party of any rights and remedies relating to the Common ABL Priority Collateral under the Senior Lender ABL Loan Documents or otherwise in respect of Senior Lender ABL Claims, or (z) object to the forbearance by the Senior ABL Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise Exercise of any rights or remedies Any Secured Creditor Remedies relating to the Common ABL Priority Collateral in respect of Senior Lender ABL Claims and (ii) except as otherwise provided herein, the Intercreditor ABL Agent and the Senior ABL Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common ABL Priority Collateral without any consultation with or the consent of any Second-Priority Term Loan Agent or any Second-Priority Secured PartyTerm Loan Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Lead Borrower, the Canadian Borrowers, the Additional US Borrowers, any other ABL Borrower or any other Grantor, each Second-Priority a Term Loan Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims Term Loan Claims, and (B) each Second-Priority a Term Loan Agent may take any action (not adverse to the prior Liens on the Common ABL Priority Collateral securing the Senior Lender ABL Claims, or the rights of the Intercreditor ABL Agent or the Senior ABL Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common ABL Priority Collateral; provided, further, that a Term Loan Agent or any Term Loan Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since (i) a Term Loan Agent has declared the existence of an “Event of Default” under the applicable Term Loan Credit Agreement, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all Term Loan Obligations and demanded payment thereof and (ii) the ABL Agent has received notice thereof from such Term Loan Agent; provided further, however, that neither any Term Loan Agent nor any other Term Loan Lender shall exercise any rights or remedies with respect to the ABL Priority Collateral if, notwithstanding the expiration of such 180-day period, the ABL Agent or the other ABL Lenders (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers or remedies with respect to all or any material portion of the ABL Priority Collateral (prompt written notice of such exercise to be given to the Term Loan Agents), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (the period during which the Term Loan Agents and the Term Loan Lenders may not pursuant to this Section 3.1(a)(ii) exercise any rights, powers or remedies with respect to the ABL Priority Collateral, the “Term Loan Standstill Period”); provided further, however, that after the expiration of the Term Loan Standstill Period, so long as neither the ABL Agent nor any other ABL Lenders have commenced any action to enforce their Lien on any material portion of the ABL Priority Collateral, in the event that and for so long as the Term Loan Lenders (or the Term Loan Agent on their behalf) have commenced any actions to enforce their Lien with respect to all or any material portion of the ABL Priority Collateral to the extent permitted hereunder and are diligently pursuing in good faith such actions, neither the ABL Lenders nor the ABL Agent shall take any action of a similar nature with respect to such ABL Priority Collateral without the prior written consent of the Term Loan Agents; provided that all other provisions of this Agreement are complied with. In exercising rights and remedies with respect to the Senior Lender ABL Priority Collateral and the Canadian ABL Exclusive Collateral, the Intercreditor ABL Agent and the Senior ABL Lenders may enforce the provisions of the Senior Lender ABL Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion consistent with the terms of the ABL Loan Documents. Such exercise and enforcement shall include the rights of an agent or any hypothecary representative (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Quebec) appointed by them to sell or otherwise dispose of Common ABL Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any Code, the PPSA, the Mortgages Act or other applicable jurisdiction law and of a secured creditor under Bankruptcy Debtor Relief Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Term Loan Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Lead Borrower, the Canadian Borrowers, the Additional US Borrowers, any other ABL Borrower or any other Grantor, subject to Section 5.6, (i) no ABL Agent or ABL Lender will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies (including setoff or recoupment) with respect to any Term Loan Priority Collateral, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure but excluding any exercise of cash dominion), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Term Loan Priority Collateral by a Term Loan Agent or any Term Loan Lender in respect of the Term Loan Claims, the exercise of any right by a Term Loan Agent or any Term Loan Lender (or any agent or sub-agent on their behalf) in respect of the Term Loan Claims, or any other exercise by any such party of any rights and remedies relating to the Term Loan Priority Collateral under the Term Loan Documents or otherwise in respect of Term Loan Claims, or (z) object to the forbearance by the Term Loan Lenders from bringing or pursuing any foreclosure proceeding or action or any other Exercise of Any Secured Creditor Remedies relating to the Term Loan Priority Collateral in respect of Term Loan Claims and (ii) except as otherwise provided herein, the Term Loan Agents and the Term Loan Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Term Loan Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Lender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Lead Borrower, the Canadian Borrowers, the Additional US Borrowers, any other ABL Borrower or any other Grantor, the ABL Agent may file a proof of claim or statement of interest with respect to the ABL Claims and (B) the ABL Agent may take any action (not adverse to the prior Liens on the Term Loan Priority Collateral securing the Term Loan Claims, or the rights of the Term Loan Agents or the Term Loan Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Term Loan Priority Collateral; provided, further, that the ABL Agent or any ABL Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since (i) the ABL Agent has declared the existence of an “Event of Default” under the ABL Credit Agreement, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all ABL Claims under the ABL Credit Agreement, and demanded payment thereof and (ii) each of the Term Loan Agents has received notice thereof from the ABL Agent; provided further, however, that neither the ABL Agent nor any other ABL Lender shall exercise any rights or remedies with respect to the Term Loan Priority Collateral if, notwithstanding the expiration of such 180-day period, the Term Loan Agents or the other Term Loan Lenders (A) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers or remedies with respect to all or any material portion of the Term Loan Priority Collateral (prompt written notice of such exercise to be given to the ABL Agent), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (the period during which the ABL Agent and the ABL Lenders may not pursuant to this Section 3.1(b)(ii) exercise any rights, powers or remedies with respect to the Term Loan Priority Collateral, the “ABL Standstill Period”); provided further, however, that after the expiration of the ABL Standstill Period, so long as neither any Term Loan Agent nor any other Term Loan Lenders have commenced any action to enforce their Lien on any material portion of the Term Loan Priority Collateral, in the event that and for so long as the ABL Lenders (or the ABL Agent on their behalf) have commenced any actions to enforce their Lien with respect to all or any material portion of the Term Loan Priority Collateral to the extent permitted hereunder and are diligently pursuing in good faith such actions, neither the Term Loan Lenders nor the Term Loan Agents shall take any action of a similar nature with respect to such Term Loan Priority Collateral without the prior written consent of the ABL Agent; provided that all other provisions of this Agreement are complied with. In exercising rights and remedies with respect to the Term Loan Priority Collateral, the Term Loan Agents and the Term Loan Lenders may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion consistent with the terms of the Term Loan Documents. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code, the PPSA , the Mortgages Act or other applicable law, and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction. (c) So long as the Discharge of ABL Claims has not occurred, each Second-Priority Term Loan Agent, on behalf of itself and each applicable Second-Priority Secured PartyTerm Loan Lender, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common ABL Priority Collateral or any proceeds of Common ABL Priority Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-ABL Priority ClaimsCollateral. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender ABL Claims has occurred, except as expressly provided in the proviso provisos in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents each Term Loan Agent and the Second-Priority Secured Parties Term Loan Lenders with respect to the Common ABL Priority Collateral is to hold a Lien on the Common ABL Priority Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Term Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender ABL Claims has occurred. So long as the Discharge of Term Loan Claims has not occurred, the ABL Agent, on behalf of itself and each ABL Lender, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Term Loan Priority Collateral. Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan Claims has occurred, except as expressly provided in the provisos in clause (ii) of Section 3.1(b), the sole right of the ABL Agent and the ABL Lenders with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Loan Claims has occurred. (cd) Subject to the proviso provisos in clause (ii) of Section 3.1(a)) above and Section 5.6, (i) each Second-Priority Term Loan Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan Lender, agrees that no Second-Priority Agent or any Second-Priority Secured Party the Term Loan Agents and the Term Loan Lenders will not take any action that would hinder any exercise Exercise of remedies Any Secured Creditor Remedies undertaken by the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Common ABL Priority Collateral under the Senior ABL Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common ABL Priority Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Term Loan Agent, for itself and on behalf of each applicable Second-Priority Secured PartyTerm Loan Lender, hereby waives any and all rights it or any Second-Priority Secured Party such Term Loan Lender may have as a junior lien creditor or otherwise with respect to the ABL Priority Collateral to object to the manner in which the Intercreditor ABL Agent or the Senior ABL Lenders seek to enforce or collect the Senior Lender ABL Claims with respect to the ABL Priority Collateral or the Liens granted in any of the Senior Lender ABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor ABL Agent or Senior ABL Lenders is adverse to the interests of the Second-Term Loan Lenders. Subject to the provisos in clause (ii) of Section 3.1(b) above and Section 5.6, (i) the ABL Agent, for itself and on behalf of each ABL Lender, agrees that the ABL Agent and the ABL Lenders will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by any Term Loan Agent or the Term Loan Lenders with respect to the Term Loan Priority Secured PartiesCollateral under the Term Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, and (ii) the ABL Agent, for itself and on behalf of each ABL Lender, hereby waives any and all rights it or any ABL Lender may have as a junior lien creditor or otherwise with respect to the Term Loan Priority Collateral to object to the manner in which the Term Loan Agents or the Term Loan Lenders seek to enforce or collect the Term Loan Claims with respect to the Term Loan Priority Collateral or the Liens granted in any of the Term Loan Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Term Loan Agents or Term Loan Lenders is adverse to the interests of the ABL Lenders. (de) Each Second-Priority Term Loan Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Term Loan Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor ABL Agent or the Senior ABL Lenders with respect to the Senior Lender ABL Priority Collateral as set forth in this Agreement and the Senior Lender ABL Loan Documents.. The ABL Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ABL Loan Document shall be deemed to restrict in any way the rights and remedies of the Term Loan Agents or the Term Loan Lender

Appears in 2 contracts

Sources: Abl Intercreditor Agreement, Abl Intercreditor Agreement (Foundation Building Materials, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Debt Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company any Borrower or any other Grantor, : (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral or any Restricted Assets or any Sale Proceeds in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral or Restricted Assets or any Sale Proceeds by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsDebt Obligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Debt Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral or Restricted Assets or any Sale Proceeds under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral or Restricted Assets or any Sale Proceeds in respect of Senior Lender Claims and Debt Obligations, and (ii) except so long as otherwise provided hereina Discharge of Senior Debt Obligations has not occurred, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to (x) the Common Collateral Shared Collateral, and (y) solely to the extent the Senior Secured Parties and the Second Priority Debt Parties are permitted to do so under the applicable Senior Debt Documents and Second Priority Debt Documents, Restricted Assets and Sale Proceeds, in each case of clause (x) or (y), without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-any Second Priority Agent Representative may file a proof of claim or statement of interest interest, subject to Section 6.10(b), vote on a plan of reorganization or similar dispositive restructuring plan (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition or extension), and make other filings, arguments, and motions with respect to the applicable Second-Second Priority Claims Debt Obligations and the Shared Collateral under its Second Priority Debt Facility, in each case in accordance with the terms of this Agreement, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Debt Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, and (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Debt Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral Shared Collateral, any Restricted Assets, any Sale Proceeds or any proceeds of Common Collateral Proceeds in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral Shared Collateral, any Restricted Assets or any Sale Proceeds in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Debt Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Collateral Shared Collateral, the Restricted Assets and the Sale Proceeds is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Debt Obligations has occurred. (c) Subject to the proviso in clause (ii) of Except as and when specifically permitted under Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Collateral Shared Collateral, the Restricted Assets and the Sale Proceeds under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, the Restricted Assets and the Sale Proceeds, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, will not exercise and hereby waives to the fullest extent permitted by law any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to (i) object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Debt Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured PartiesDebt Parties or (ii) demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral Collateral, the Restricted Assets and the Sale Proceeds as set forth in this Agreement Agreement. (e) Until the Discharge of Senior Debt Obligations, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto available to the Designated Senior Representative with respect to such Collateral; provided, however, that the Second Priority Representatives and the Second Priority Debt Parties may exercise any of their rights or remedies with respect to the Shared Collateral to the extent permitted by the proviso to Section 3.01(a). Following the Discharge of Senior Lender Debt Obligations, the Designated Second Priority Representative shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Debt Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or neither any Second-Priority Junior Representative nor any Junior Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Priority ClaimsJunior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Designated Senior Representative, any Second-Priority Agent other Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Priority Agent Junior Representative or any Second-Priority Junior Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent any Junior Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Priority Claims and Junior Obligations under its Junior Debt Facility, (B) each Second-Priority Agent any Junior Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with or prohibited by this Agreement, any Junior Representative and the Junior Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) any Junior Representative may exercise the rights and remedies provided for in Section 6.03 and may vote on a proposed Plan of Reorganization in any Insolvency or Liquidation Proceeding of the Company or any other Grantor in accordance with the terms of this Agreement (including Section 6.12), (E) any Junior Representative and the Junior Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Secured Parties, including any claims secured by the Junior Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Junior Enforcement Date, the Designated Junior Representative or any person authorized by it may exercise or seek to exercise any rights or remedies with respect to any Shared Collateral in respect of any Junior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), in each case of clauses (A) through (F) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Priority AgentJunior Representative, on behalf of itself and each applicable Second-Priority Junior Secured PartyParty under its Junior Debt Facility, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Priority ClaimsJunior Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (iiSection 3.01(a) of Section 3.1(a)and in Article VI, the sole right of the Second-Priority Agents Junior Representatives and the Second-Priority Junior Secured Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Priority Claims Junior Obligations pursuant to the Second-Priority Documents, as applicable, Junior Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Priority AgentJunior Representative, for itself and on behalf of each applicable Second-Priority Junior Secured PartyParty under its Junior Debt Facility, agrees that no Second-Priority Agent or neither such Junior Representative nor any Second-Priority such Junior Secured Party will take any action that would hinder or delay any exercise of remedies undertaken by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority AgentJunior Representative, for itself and on behalf of each applicable Second-Priority Junior Secured PartyParty under its Junior Debt Facility, hereby waives any and all rights it or any Second-Priority such Junior Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Priority Junior Secured Parties. (d) Each Second-Priority Agent Junior Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Junior Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to the proviso in Section 3.01(a), until the Discharge of Senior Obligations, the Designated Senior Representative or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Representative or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Collateral and shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Secured Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Representatives, or for the taking of any other action authorized by the Junior Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Junior Representative or other agent or trustee acting on behalf of the Junior Secured Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Secured Parties or the Junior Obligations.

Appears in 2 contracts

Sources: Indenture (Amc Entertainment Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (Amc Entertainment Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender First Lien Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority neither the Second Lien Agent or nor any Second-Priority Second Lien Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of any applicable Second-Priority Second Lien Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral Collateral, or any other collateral, by the Intercreditor First Lien Agent or any Senior First Lien Lender in respect of the Senior Lender First Lien Claims, the exercise of any right by the Intercreditor First Lien Agent or any Senior First Lien Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender First Lien Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority the Second Lien Agent or any Second-Priority Second Lien Secured Party Parties either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral Collateral, or any other collateral, under the Senior Lender First Lien Documents or otherwise in respect of Senior Lender First Lien Claims, or (z) object to the forbearance by the Senior First Lien Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender First Lien Claims and (ii) except as otherwise provided herein, the Intercreditor First Lien Agent and the Senior First Lien Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Agent or any Second-Priority Second Lien Secured Parties (provided that the First Lien Agent will use its reasonable efforts to advise the Second Lien Agent at reasonable intervals of the status of any lien enforcement actions conducted by the First Lien Agent (provided, however, that the failure of the First Lien Agent to so advise the Second Lien Agent shall not impair or affect the Second Lien Agent’s or any Second Lien Secured Party’s obligations to the First Lien Agent and the First Lien Lenders, the First Lien Agent’s rights hereunder or the enforceability of this Agreement or any Liens created or granted hereby)); provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority the Second Lien Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Second Lien Claims, (B) the Second Lien Agent and the Second Lien Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties, including, without limitation, any claims secured by the Common Collateral, if any, in each Second-Priority case, not otherwise in contravention of the terms of this Agreement, (C) the Second Lien Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender First Lien Claims, or the rights of the Intercreditor First Lien Agent or the Senior First Lien Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralCollateral and (D) subject to Section 3.1(e), the Second Lien Agent and the Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Common Collateral after the termination of the Standstill Period. In exercising rights and remedies with respect to the Senior Lender First Lien Collateral, the Intercreditor First Lien Agent and the Senior First Lien Lenders may enforce the provisions of the Senior Lender First Lien Documents and exercise remedies thereunderthereunder with respect to the Common Collateral, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender First Lien Claims has not occurred, each Second-Priority the Second Lien Agent, on behalf of itself and each applicable Second-Priority Second Lien Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with (i) the exercise of any right or remedy (including setoffsetoff or recoupment) or (ii) any Asset Sale or Event of Loss, in each case with respect to any Common Collateral or other collateral in respect of the applicable Second-Priority Second Lien Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender First Lien Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a) and in Section 3.1(e), the sole right of the Second-Priority Agents Second Lien Agent and the Second-Priority Second Lien Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Second Lien Claims pursuant to the Second-Priority Second Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender First Lien Claims has occurred. (c) Subject to the final proviso in clause (ii) of Section 3.1(a)) above and the proviso in Section 3.1(e) below, (i) each Second-Priority the Second Lien Agent, for itself and on behalf of each applicable Second-Priority Second Lien Secured Party, agrees that no Second-Priority neither the Second Lien Agent or nor any Second-Priority Second Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor First Lien Agent or the Senior First Lien Lenders with respect to the Common Collateral or any other collateral under the Senior Loan First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority the Second Lien Agent, for itself and on behalf of each applicable Second-Priority Second Lien Secured Party, hereby waives any and all rights it or any Second-Priority Second Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Lien Agent or the Senior First Lien Lenders seek to enforce or collect the Senior Lender First Lien Claims or the Liens granted in any of the Senior Lender First Lien Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Agent or Senior First Lien Lenders is adverse to the interests of the Second-Priority Second Lien Secured Parties. (d) Each Second-Priority The Second Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Second Lien Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First Lien Agent or the Senior First Lien Lenders with respect to the Senior Lender First Lien Collateral as set forth in this Agreement and the Senior Lender First Lien Documents. (e) Each party hereto agrees that, after a period of 150 days has elapsed since the date on which the Second Lien Agent has delivered to the First Lien Agent written notice of the acceleration of the Indebtedness then outstanding under the Second Lien Indenture (the “Standstill Period”), the Second Lien Agent may (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Common Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Agent or any Second Lien Secured Party is a party) or (B) commence or join with any person (other than the First Lien Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Second Lien Agent or any Second Lien Secured Party enforce or exercise any rights or remedies with respect to any Common Collateral, or commence, join with any person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Lien Agent or any First Lien Lender shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to all or any material portion of the Common Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Agent by the First Lien Agent).

Appears in 2 contracts

Sources: Intercreditor Agreement, Intercreditor Agreement (Mariner, LLC)

Exercise of Remedies. (a) So long Except as otherwise permitted by Section 3.1(c), until the Discharge of Senior Lender Claims First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Second Lien Collateral Agent and the Second Lien Claimholders: (i1) no Second-Priority Agent or any Second-Priority Secured Party will (x) not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect (including, without limitation, the exercise of any applicable Second-Priority Claimsright of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second Lien Collateral Agent or any Second Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), ) or take any other Lien Enforcement Action; (y2) will not contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First Lien Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any such party, First Lien Claimholder of any rights and remedies relating to the Common Collateral under the Senior Lender First Lien Loan Documents or otherwise in respect of Senior Lender Claims, or otherwise; (z3) will not object to the forbearance by the Senior Lenders First Lien Collateral Agent or the First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral Collateral, in respect each case so long as the Liens granted to secure the Second Lien Obligations of Senior Lender Claims and the Second Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2; (4) will not initiate or join in or petition for or vote in favor of any resolution for or instigate or support, any Insolvency or Liquidation Proceeding; and (5) will not: (i) accelerate any payment of all or any of the Second Lien Obligations; (ii) except as otherwise collect the Second Lien Obligations or any part thereof other than in common equity of the Company; (iii) enforce any right of repayment of any Second Lien Obligations other than in common equity of the Company; or (iv) initiate (or join in) or file or prosecute any proceeding or judicial action with respect to the Second Lien Obligations; provided hereinthat, upon 5 Business Days prior written notice to the First Lien Collateral Agent after the Standstill Period, to the extent permitted by the terms of the Second Lien Loan Documents, the Intercreditor Second Lien Collateral Agent may accelerate the Second Lien Obligations and may, subject to the terms of clause (4) above and the other provisions of this Agreement, file and prosecute a lawsuit to collect the Second Lien Obligations. As used in this Section 3.1(a)(5), the term “Standstill Period” means the period beginning on the occurrence of an Event of Default under and as defined in the Second Lien Loan Documents and ending on the date that is 540 days following the latest date after both (1) any Second Lien Collateral Agent shall have given notice (making specific reference to this Section 3.1(a)(5) and describing such Event of Default that is subject to such notice) to the First Lien Collateral Agent that any such Event of Default under the Second Lien Loan Documents shall have occurred and be continuing and of such Second Lien Collateral Agent’s intent to exercise rights and remedies and (2) the commencement of material work under all of the contracts that any of the Grantors then have entered into as of the time of the delivery of the notice in the preceding clause (1), except for any contracts, which individually or in the aggregate, as of such date would not entitle the Company to aggregate payments in excess of $1,000,000. (b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the First Lien Collateral Agent and the Senior Lenders First Lien Claimholders shall have the exclusive right to manage, perform and enforce the terms of the First Lien Loan Documents in respect of the Collateral, to exercise and enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations in its sole discretion regarding the release, disposition disposition, or restrictions with respect to the Common Collateral, including, without limitation, the exclusive right to take or retake control or possession of the Collateral and to hold, prepare for sale, process, lease, sell, dispose of or liquidate the Collateral, all without any consultation with or the consent of any Second-Priority the Second Lien Collateral Agent or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Second Lien on, the Common CollateralClaimholder. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First Lien Collateral Agent and the Senior Lenders First Lien Claimholders may enforce the provisions of the Senior Lender First Lien Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (bc) So Notwithstanding anything in this Agreement to the contrary (except as specifically provided below), the Second Lien Collateral Agent and any Second Lien Claimholder may, at any time and from time to time: (1) file a claim or statement of interest with respect to the Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor by or on behalf of someone other than a Second Lien Claimholder; (2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of any First Lien Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect or maintain its Lien on the Collateral, subject to the terms of this Agreement; (3) ask the Company for and/or, subject to Section 4.3 hereof, scheduled payments with respect to Second Lien Obligations required to be made in accordance with the terms of the Second Lien Loan Documents then due and owing, but without acceleration of the maturity of such obligations; (4) exercise any and all of their rights and remedies in respect of any conversion or redemption of, or any other payment of, any Second Lien Obligations solely into common equity of the Company; and (5) sell, assign or otherwise transfer any and all of the Second Lien Obligations and their rights relating thereto, subject to and in compliance with the provisions of this Agreement, so long as any such subsequent holder agrees in writing to be bound by the Discharge terms of Senior Lender Claims has not occurred, each Second-Priority this Agreement. The Second Lien Collateral Agent, on behalf of itself and each applicable Second-Priority Secured Partythe Second Lien Claimholders, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoffset-off) with respect to any Common Collateral in respect Collateral, unless and until the Discharge of the applicable Second-Priority ClaimsFirst Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.1(c), the sole right of the Second-Priority Agents Second Lien Collateral Agent and the Second-Priority Secured Parties Second Lien Claimholders with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Second Lien Collateral Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims First Lien Obligations has occurred. (c1) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority The Second Lien Collateral Agent, for itself and on behalf of each applicable Second-Priority Secured Partythe Second Lien Claimholders, agrees that no Second-Priority the Second Lien Collateral Agent or any Second-Priority Secured Party and the Second Lien Claimholders will not take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior First Lien Loan DocumentsDocuments or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwiseotherwise or that would limit, and invalidate, avoid or set aside any Lien or Collateral Document or subordinate the priority of the First Lien Obligations to the Second Lien Obligations or afford the Liens securing the Second Lien Obligations equal ranking to the Liens securing the First Lien Obligations; (ii2) each Second-Priority the Second Lien Collateral Agent, for itself and on behalf of each applicable Second-Priority Secured Partythe Second Lien Claimholders, hereby waives any and all rights it or any Second-Priority Secured Party the Second Lien Claimholders may have as a junior lien creditor or otherwise (whether arising under the UCC or any other law) to object to the manner in which the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Claimholders seek to enforce or collect the Senior Lender Claims First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the Senior Lender First Lien Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Collateral Agent or Senior Lenders First Lien Claimholders is adverse to the interests interest of the Second-Priority Secured Parties.Second Lien Claimholders; and (d3) Each Second-Priority the Second Lien Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Second Lien Collateral Documents or any applicable Second-Priority other Second Lien Loan Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First Lien Collateral Agent or the Senior Lenders First Lien Claimholders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender First Lien Loan Documents. (e) Except as specifically set forth in Sections 3.1(a) and (d) and subject to Section 3.1(f), the Second Lien Collateral Agent and the Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Second Lien Obligations in accordance with the terms of this Agreement, the Second Lien Loan Documents and applicable law; provided that in the event that any Second Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations and being subordinate thereto) as the other Liens securing the Second Lien Obligations subject to this Agreement. (f) Except as specifically set forth in Sections 3.1(a) and (d) and Section 4.3, nothing in this Agreement shall prohibit the receipt by the Second Lien Collateral Agent or any Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Second Lien Obligations so long as both such payment does not constitute proceeds of Collateral and such receipt is not the direct or indirect result of the exercise by the Second Lien Collateral Agent or any Second Lien Claimholders of rights or remedies as a secured creditor (including set-off) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Collateral Agent or the First Lien Claimholders may have with respect to the First Lien Collateral.

Appears in 1 contract

Sources: Intercreditor Agreement (Modtech Holdings Inc)

Exercise of Remedies. Subject, following the expiration of the Standstill Period, to the Second Lien Collateral Agent’s rights under clause (f) of this Section 3.01: (a) So long as the Discharge of Senior Lender Claims First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCredit Party, (i) no Second-Priority none of the Second Lien Collateral Agent or nor any Second-Priority other Second Lien Secured Party will (x) exercise take or seek to exercise take any rights or remedies (including setoff) with respect to any Common Collateral Enforcement Actions in respect of any applicable Second-Priority ClaimsSecond Lien Obligations, or institute any action or proceeding with respect to such rights or remedies any Enforcement Actions (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action other Enforcement Action brought with respect to the Common Collateral or any other First Lien Collateral by the Intercreditor First Lien Administrative Agent or any Senior Lender other First Lien Secured Party in respect of the Senior Lender ClaimsFirst Lien Obligations, the exercise of any right by the Intercreditor First Lien Administrative Agent or any Senior Lender other First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority the First Lien Administrative Agent or any Second-Priority other First Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, First Lien Secured Party of any rights and remedies relating to the Common Collateral under the Senior Lender First Lien Debt Documents or otherwise in respect of Senior Lender Claims, the First Lien Collateral or the First Lien Obligations or (z) object to the forbearance by the Senior Lenders First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action action, any other Enforcement Action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims First Lien Obligations and (ii) except as otherwise provided herein, the Intercreditor First Lien Administrative Agent and the Senior Lenders other First Lien Secured Parties shall have the exclusive right to take Enforcement Actions and otherwise enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Collateral Agent or any Second-Priority other Second Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or a Credit Party, any other Grantor, each Second-Priority Agent Second Lien Representative may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims and Second Lien Obligations under its Second Lien Debt Facility; provided no such action is, or could reasonably be expected to be, inconsistent with the terms of the Agreement, (B) each Second-Priority the Second Lien Collateral Agent may take any action (not adverse to the prior status of the Liens on the Common Collateral securing the Senior Lender Claims, First Lien Obligations or the rights of the Intercreditor First Lien Administrative Agent or the Senior Lenders other First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralCollateral and (C) the Second Lien Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of such Second Lien Secured Party or the avoidance of any Second Priority Lien, to the extent not inconsistent with the terms of this Agreement. In taking Enforcement Actions and otherwise exercising rights and remedies with respect to the Senior Lender First Lien Collateral, the Intercreditor First Lien Administrative Agent and the Senior Lenders other First Lien Secured Parties may enforce the provisions of the Senior Lender First Lien Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion and without consultation with the Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the claims or interest of any Second Lien Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction or under the First Lien Mortgages under any applicable laws of any jurisdiction and of a secured creditor under Bankruptcy Laws or other applicable laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First Lien Priority Obligations has not occurred, except as expressly provided in the proviso in Section 3.01(a)(ii), the Second Lien Collateral Agent and each Second-Priority AgentSecond Lien Representative, on behalf of itself and each applicable Second-Priority Second Lien Secured Party, Party under its Second Lien Debt Facility each agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds Proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claimsany Second Lien Obligation. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First Lien Priority Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a)(ii), the sole right of the Second-Priority Agents Second Lien Collateral Agent and the Second-Priority other Second Lien Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims Second Lien Obligations pursuant to the Second-Priority Documents, as applicable, Second Lien Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims First Lien Priority Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a)(ii), (i) the Second Lien Collateral Agent and each Second-Priority AgentSecond Lien Representative, for itself and on behalf of each applicable Second-Priority Second Lien Secured Party, Party under its Second Lien Debt Facility each agrees that no Second-Priority none of the Second Lien Collateral Agent or nor any Second-Priority other Second Lien Secured Party will take any action that would hinder any Enforcement Action or other exercise of remedies undertaken by the Intercreditor First Lien Administrative Agent or the Senior Lenders any First Lien Secured Party with respect to the Common Collateral under the Senior Loan First Lien Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) the Second Lien Collateral Agent and each Second-Priority AgentSecond Lien Representative, for itself and on behalf of each applicable Second-Priority Second Lien Secured Party, Party under its Second Lien Debt Facility each hereby waives any and all rights it or any Second-Priority Second Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Lien Administrative Agent or the Senior Lenders other First Lien Secured Parties seek to enforce or collect the Senior Lender Claims First Lien Obligations or the Liens granted in on any of the Senior Lender First Lien Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Administrative Agent or Senior Lenders any other First Lien Secured Party is adverse to the interests of the Second-Priority Second Lien Secured Parties. (d) Each Second-Priority The Second Lien Collateral Agent and each Second Lien Representative (for itself and on behalf of each Second Lien Secured Party under its Second Lien Debt Facilities) each hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Second Lien Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders First Lien Secured Parties with respect to the Senior Lender First Lien Collateral as set forth in this Agreement and the Senior Lender First Lien Debt Documents. (e) Until the Discharge of First Lien Priority Obligations and subject to Section 3.01(f), the First Lien Administrative Agent shall have the exclusive right to take Enforcement Actions or otherwise exercise any right or remedy with respect to the Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. (f) After the expiration of the Standstill Period, the Second Lien Collateral Agent may commence Enforcement Actions with respect to the Collateral; provided that in no event shall the Second Lien Collateral Agent or any Second Lien Representative (for itself and on behalf of each Second Lien Secured Party under its Second Lien Debt Facilities) take or continue to take any Enforcement Actions if, notwithstanding the expiration of the Standstill Period, any First Lien Secured Party shall have commenced and be diligently pursuing the exercise of rights and remedies with respect to any of the Collateral, or an Insolvency or Liquidation Proceeding shall have been commenced in respect of the Credit Parties; provided, further, that in any Insolvency or Liquidation Proceeding commenced by or against the Credit Parties, the Second Lien Collateral Agent or any Second Lien Representative (for itself and on behalf of each Second Lien Secured Party under its Second Lien Debt Facilities) may take any action expressly permitted by the express provisions of this Agreement. (g) The parties hereto understand and acknowledge that the provisions of this Section 3.01 do not modify or affect the exercise of the purchase right set forth in Section 5.07.

Appears in 1 contract

Sources: Intercreditor Agreement (Stone Energy Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff and credit bidding (other than any credit bid that provides for the Discharge of Senior Obligations upon closing of such bid)) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s 's letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, and (E) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff and credit bid)) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role capacity as secured creditora Second Priority Debt Party, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that that, notwithstanding the occurrence of the Second Priority Enforcement Date, would hinder hinder, delay or interfere with any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (Driven Brands Holdings Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralCollateral and (C) each Second Priority Agent may file any pleadings, objections, motions or agreements which assert rights available to unsecured creditors of the Company or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Claires Stores Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Holdings, the Company Borrower or any other Grantor, : (i) no the Second-Priority Lien Collateral Agent or any and the other Second-Priority Secured Party Lien Creditors will (x) not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect (including, without limitation, the exercise of any applicable right under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, if any, to which the Second-Priority ClaimsLien Collateral Agent or any Second-Lien Creditor is a party) or institute or commence, institute or join with any Person in commencing, any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution and any Insolvency or Liquidation Proceeding), (y) and will not contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First-Lien Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or subother First-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, Lien Creditor or any other exercise by the First-Lien Collateral Agent or any such partyother First-Lien Creditor, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Lien Credit Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior Lenders First-Lien Collateral Agent or the other First-Lien Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Collateral; and (ii) except as otherwise provided hereinthe First-Lien Collateral Agent shall have the exclusive right, the Intercreditor Agent and the Senior Lenders Required other First-Lien Creditors shall have the exclusive right to instruct the First-Lien Collateral Agent, to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any the Second-Priority Lien Collateral Agent or any other Second-Priority Secured PartyLien Creditor, all as though the Liens of the Second-Lien Collateral Agent under the Second-Lien Documents did not exist; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each the Second-Priority Lien Collateral Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and Lien Obligations, (B) each the Second-Priority Lien Collateral Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Lien Obligations, or the rights of the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onon the Collateral in accordance with the terms of this Agreement and (C) the Second-Lien Creditors shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the Common disallowance of the claims of the Second-Lien Creditors, including any claim secured by the Collateral, if any, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First-Lien Collateral Agent and the Senior Lenders other First-Lien Creditors may enforce the provisions of the Senior Lender First-Lien Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each The Second-Priority Lien Collateral Agent, on behalf of itself and each applicable the Second-Priority Secured PartyLien Creditors, and each other Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien Credit Documents), agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect Collateral, unless and until the Discharge of the applicable SecondFirst-Priority ClaimsLien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First-Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Lien Collateral Agent and the other Second-Priority Secured Parties Lien Creditors with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Lien Security Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims the First-Lien Obligations has occurredoccurred in accordance with the terms of the Second-Lien Credit Documents and applicable law. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each The Second-Priority Lien Collateral Agent, for itself and on behalf of each applicable the Second-Priority Secured PartyLien Creditors, and each other Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien Credit Documents), (i) agrees that no the Second-Priority Lien Collateral Agent or any and the other Second-Priority Secured Party Lien Creditors will not take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan First-Lien Credit Documents, including any collection, sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or Security Document or subordinate the priority of the First-Lien Obligations to the Second-Lien Obligations or grant the Liens securing the Second-Lien Obligations equal ranking to the Liens securing the First-Lien Obligations and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any the Second-Priority Secured Party Lien Creditors may have as a junior lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors seek to enforce or collect the Senior Lender Claims or on the Liens granted in any of the Senior Lender First-Lien Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First-Lien Collateral Agent or Senior Lenders First-Lien Creditors is adverse to the interests interest of the Second-Priority Secured PartiesLien Creditors. (d) Each The Second-Priority Lien Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable the Second-Priority Lien Security Documents or any other Second-Lien Credit Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender First-Lien Credit Documents.

Appears in 1 contract

Sources: Intercreditor Agreement (Nuveen Investments Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Issuers or any other Grantor, (i) no Second-neither any Junior Priority Agent or Representative nor any Second-Junior Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Junior Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff or recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Junior Priority Agent Representative or any Second-Junior Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against either of the Company Issuers or any other Grantor, each Second-any Junior Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Junior Priority Claims and Debt Obligations under its Junior Priority Debt Facility, (B) each Second-any Junior Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, and (D) the Junior Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Junior Priority AgentRepresentative, on behalf of itself and each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Junior Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Junior Priority Agents Representatives and the Second-Junior Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Junior Priority Claims Debt Obligations pursuant to the Second-Junior Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, agrees that no Second-neither such Junior Priority Agent or Representative nor any Second-such Junior Priority Secured Debt Party will take any action that would hinder or delay any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Junior Priority AgentRepresentative, for itself and on behalf of each applicable Second-Junior Priority Secured PartyDebt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any Second-such Junior Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Junior Priority Secured Debt Parties. (d) Each Second-Junior Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Junior Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Junior Priority Representative who may be instructed by the Junior Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Junior Priority Representative who may be instructed by the Junior Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Priority Debt Parties or the Junior Priority Debt Obligations.

Appears in 1 contract

Sources: Indenture (Diamond Offshore Drilling, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against occurred and subject to the Company or any other Grantorimmediately following sentence, (i) no Second-neither the Second Priority Agent or nor any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (each of the foregoing, a “Remedy”, and together, “Remedies”), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-the Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies Remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies Remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-the Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-the Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and (B) each Second-the Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor First Lien Agent or the Senior Lenders to exercise remedies Remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. Notwithstanding the foregoing but subject to Section 6 hereof, the Second Priority Agent and any Second Priority Secured Party may exercise any Remedy after the Second Priority Agent shall have given written notice to the First Lien Agent (a) that an Event of Default has occurred under and as defined in the Series B Credit Agreement and stating its intentions to exercise Remedies and (b) a period of at least 10 days shall have elapsed from receipt of such notice (the “Remedies Notice”) by the First Lien Agent; provided that (x) such 10-day period shall be extended to 120 days (including the 10 day period) if the First Lien Agent shall have given written notice (a “Standstill Election Notice”) to the Second Priority Agent during such 10-day period electing to extend such period to 120 days (including the 10 day period) and (y) the period during which the Second Priority Agent and Second Priority Secured Parties shall be prohibited from exercising Remedies shall terminate upon the earliest to occur of such 10-day or 120-day period (the “Standstill Period”), as applicable, or the occurrence of any of the following: (i) occurrence of an Insolvency or Liquidation Proceeding of the Company or any other Grantor or (ii) such time as the First Lien Agent consents in writing to the termination of the Standstill Period. In exercising rights and remedies Remedies with respect to the Senior Lender Collateral, the Intercreditor First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies Remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred.[Reserved] (c) Subject to the proviso in clause (ii) of the first sentence of Section 3.1(a) above and the second sentence of Section 3.1(a), (i) each Second-the Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies Remedies undertaken by the Intercreditor First Lien Agent or the Senior Lenders with respect to the Common Collateral under the or any other Senior Loan DocumentsLender Collateral, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, otherwise (provided that in no event shall this clause limit the Second Priority Agent or any Second Priority Secured Party’s rights in or rights to take any action relating to the Series B Term Loan Controlled Account) and (ii) each Second-except as expressly set forth in this Agreement, the Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-other Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Lien Agent or the any other Senior Lenders seek Lender seeks to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Agent or any other Senior Lenders Lender is adverse to the interests of the Second-Second Priority Secured Parties. (d) Each Second-The Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies Remedies of the Intercreditor First Lien Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Intercreditor Agreement (Riviera Holdings Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorObligor, (i) no Second-Priority Agent or any Second-Priority Secured Party the Trustee and the Noteholders will (x) not exercise or seek to exercise any rights or remedies (including by way of setoff) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, institute any action or proceeding with respect to such rights or remedies (remedies, including any action of foreclosure), (y) or contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Administrative Agent or any Senior Lender in respect of the Senior Lender Claimsother Secured Party, the any exercise of any right by the Intercreditor Agent or under any Senior Lender (or any agent or sub-agent on their behalf) control agreement in respect of the Senior Lender Claims under a deposit account or securities entitlement constituting Common Collateral, or any lockbox agreement, control agreement, landlord waiver or bailee’s 's letter or similar agreement or arrangement to which any Second-Priority Agent the Trustee or any Second-Priority Secured Party either Noteholder is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Loan Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Administrative Agent and the Senior Lenders other Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including by way of setoff and the right to credit bid their debt) ), refrain from enforcing or exercising remedies, and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent the Trustee or any Second-Priority Secured PartyNoteholder, all as if the Lien of the Trustee under the Noteholder Collateral Documents did not exist; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Obligor, the Company Trustee or any other Grantor, each Second-Priority Agent Noteholder may file a claim or statement of interest with respect to the applicable Second-Priority Noteholder Claims and (B) each Second-Priority Agent the Trustee or any Noteholder may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Claims in order to createestablish, provepreserve, perfect, preserve perfect or protect (but not enforce) its rights in, and perfection and priority of its Lien on, in the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor Administrative Agent and the Senior Lenders or any other Secured Parties may enforce the provisions of the Senior Lender Loan Documents and exercise remedies thereunder, all in such order and in such manner as they it may determine in the exercise of their its sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them the Administrative Agent and the other Secured Parties to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender party under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws bankruptcy or similar laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority AgentThe Trustee, on behalf of itself and each applicable Second-Priority Secured Partythe Noteholders, agrees that it will not, in connection with the context exercise of its role as secured creditorany right or remedy (including by way of setoff) with respect to any Common Collateral, take or receive any Common Collateral or any proceeds of Common Collateral unless and until the Discharge of Lender Claims has occurred. In the event any such proceeds are received by the Trustee in connection with violation of this Agreement, such proceeds shall be segregated and held in trust for the exercise benefit of the Secured Parties in the same form as received, and shall not be applied to the satisfaction of any right or remedy (including setoff) with respect to any Common Collateral in respect Noteholder Claims unless and until the Discharge of the applicable Second-Priority ClaimsLender Claims has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (iia)(ii) of Section 3.1(a)3.1, the sole right of the Second-Priority Agents Trustee and the Second-Priority Secured Parties Noteholders as secured parties with respect to the Common Collateral is to hold a perfected Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Noteholder Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior the Lender Claims has occurred. (c) Each Obligor agrees that it will not, in connection with the exercise of any right or remedy with respect to any Common Collateral by the Trustee or the Noteholders, transfer, deliver or pay, as applicable, to the Trustee or any Noteholder any Common Collateral or any proceeds of Common Collateral unless and until the Discharge of Lender Claims has occurred. (d) Subject to the proviso in clause (iia)(ii) of Section 3.1(a)3.1, (i) each Second-Priority Agentthe Trustee, for itself and on behalf of each applicable Second-Priority Secured Partythe Noteholders, agrees that no Second-Priority Agent or any Second-Priority Secured Party the Trustee and the Noteholders will not take any action that would hinder or cause to delay any exercise of remedies undertaken by the Intercreditor Administrative Agent or the Senior Lenders with respect to the Common Collateral any other Secured Party under the Senior Loan DocumentsDocuments as secured parties in respect of any Common Collateral, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agentthe Trustee, for itself and on behalf of each applicable Second-Priority Secured Partythe Noteholders, hereby waives any and all rights it or any Second-Priority Secured Party the Noteholders may have as a junior lien creditor or otherwise (whether arising under the UCC or any other law) to object to the manner in which the Intercreditor Administrative Agent or the Senior Lenders other Secured Parties seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Intercreditor Agreement (Mens Apparel Guild in California Inc)

Exercise of Remedies. (a) So long as Until the Discharge of Senior Lender Claims Obligations with respect to such Collateral has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantorcommenced, each Agent, for itself and on behalf of its Related Secured Parties, agrees that none of them will: (i) no Second-Priority Agent enforce or any Second-Priority Secured Party will (x) exercise exercise, or seek to exercise enforce or exercise, any rights or remedies (including setoff) with respect to any Common Senior Priority Collateral in respect of any applicable SecondSecured Party of the other Class (including the exercise of any right of set-Priority Claimsoff, recoupment, or enforcement of any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided that the parties hereto acknowledge and agree that this Section shall not in any way prohibit any Agent or any of its Related Secured Parties from (A) commencing, or joining in filing of a petition for commencement of, any involuntary Insolvency or Liquidation Proceeding of the type described in clause (ya) or (b) of the definition of such term or (B) exercising any of its rights during an Insolvency or Liquidation Proceeding to the extent expressly permitted by Article VI; (ii) subject to the proviso set forth in paragraph (a)(i) of this Section, commence or join with any Person (other than the Senior Secured Parties upon the request or with the consent thereof) in commencing, or file with any court documents that seek to commence, or petition for or vote in favor of, any action or proceeding with respect to any rights or remedies with respect to any Senior Priority Collateral of any Secured Party of the other Class (including any foreclosure action or seeking or requesting relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof); (iii) contest, protest or object to any foreclosure proceeding or action brought by any Secured Party of the other Class with respect to, or any other enforcement or exercise by any Secured Party of such other Class of any rights and remedies relating to, any Senior Priority Collateral of such Secured Party, whether under the Credit Documents of such other Class or otherwise and including any Disposition of any such Senior Priority Collateral, whether by foreclosure or otherwise; and (iv) contest, protest or object to the forbearance by any Secured Party of the other Class from bringing or pursuing any foreclosure proceeding or action with respect to, or any other enforcement or exercise by any Secured Party of such other Class of any rights or remedies relating to, any Senior Priority Collateral of such Secured Party; provided that, in each case under this Section, the Junior Liens on such Collateral shall attach to all Proceeds of such Collateral resulting from actions taken by any Senior Secured Party in accordance with this Agreement, subject to the relative Lien priorities set forth in Section 2.01. (b) Subject to the terms and conditions of this Agreement (including paragraph (a)(i) of this Section), until the Discharge of Senior Obligations with respect to such Collateral has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Common Collateral by the Intercreditor Agent or any Senior Lender Secured Parties in respect of such Collateral shall have the Senior Lender Claims, exclusive right to enforce and exercise rights and remedies (including the exercise of any right by the Intercreditor Agent or of set-off, recoupment, any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and with respect to any of their Senior Priority Collateral and, in the course of such exercise, make related determinations regarding the release, disposition Disposition or restrictions with respect to the Common Collateral any such Collateral, without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Junior Secured Party; providedprovided that the Junior Liens on such Collateral shall remain on the remaining Proceeds of such Collateral so released or Disposed of, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect subject to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies relative Lien priorities set forth in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralSection 2.01. In exercising rights and remedies with respect to the any of its Senior Lender Priority Collateral, the Intercreditor Agent and the each Senior Lenders Secured Party may enforce the provisions of the applicable Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they it may determine in the exercise of their its sole discretion. Such exercise and enforcement shall include the rights right of an any agent appointed by them any Senior Secured Party to sell or otherwise dispose Dispose of Common such Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, other Disposition and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction. (bc) So long Notwithstanding the foregoing provisions of this Section, the Secured Parties of any Class may: (i) file a claim, proof of claim, or statement of interest with respect to Obligations of such Class in any Insolvency or Liquidation Proceeding; (ii) take any action in order to create, perfect, preserve, protect or prove (but not enforce) their Junior Liens on any Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the priority status of any Senior Liens on such Collateral or the rights of any Senior Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Junior Liens provided in Section 5.01; (iii) file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of any Secured Party of such Class, including any claims secured by Junior Priority Collateral thereof, or the avoidance of any Liens on the Collateral securing Obligations of such Class, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) exercise their rights and remedies as unsecured creditors to the Discharge extent (and only to the extent) provided in paragraph (e) of this Section, including filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding, in accordance with applicable law (including the Bankruptcy Laws of any applicable jurisdiction), in each case, to the extent not inconsistent with or prohibited by the terms of this Agreement; (v) vote on any plan of reorganization or similar dispositive restructuring plan (including to accept or reject any plan of partial or complete liquidation, reorganization, arrangement, composition or extension) and make other filings and make any arguments and motions, in each case, to the extent not inconsistent with or prohibited by the terms of this Agreement; and (vi) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to any Collateral initiated by any Senior Lender Claims has Secured Party with respect thereto, to the extent that any such action could not occurredreasonably be expected to restrain, each Second-Priority hinder, limit, delay for any significant period or otherwise interfere with the exercise of rights or remedies with respect to such Collateral by the Senior Secured Parties (it being understood that no Junior Secured Party shall be entitled to receive any Proceeds thereof unless otherwise expressly permitted hereby). Each Agent, for itself and on behalf of itself and each applicable Second-Priority its Related Secured PartyParties, agrees that to the extent it will not, in the context of its role as secured creditor, take or shall receive any Common Senior Priority Collateral of any Secured Party of the other Class or any proceeds Proceeds of Common any such Collateral in connection with the enforcement or exercise of any right or remedy (including setoffany right of set-off) with respect to any Common such Collateral in respect its capacity as a creditor, or in connection with any insurance policy relating to any such Collateral or any Condemnation Proceeds relating to any such Collateral, it shall hold such Collateral in a manner that is consistent with, or otherwise required by, the terms of the applicable Second-Priority Claimsthis Agreement (including Section 4.02 hereof). Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations with respect to such Collateral has occurred, except as expressly provided in the proviso in clause this paragraphs (iia) and (c) of this Section 3.1(a)(but subject to Section 4.02) and Sections 5.06, 5.07, 5.08, and 6.03, the sole right of the Second-Priority Agents and the Second-Priority Secured Parties of any Class with respect to any of the Common Senior Priority Collateral of the Secured Parties of the other Class is to hold a Junior Lien on the Common such Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the such Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Term Credit Agreement (Fossil Group, Inc.)

Exercise of Remedies. (a) So In connection with any Senior Enforcement Action, so long as the Discharge of Senior Lender Claims Debt has not occurredbeen Paid in Full, whether or not any Insolvency or Liquidation a Proceeding has been commenced by or against the Company any Loan Party or any other Grantor, of its subsidiaries: Junior Lender will not (i) no Second-Priority Agent or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority Claims, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (yA) contest, protest or object to any foreclosure proceeding or action brought by Senior Lender with respect to the Common Collateral by the Intercreditor Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiaryto, or any other exercise by any such party, Senior Lender of any rights and remedies relating to to, the Common Collateral under the respective Senior Lender Debt Documents or otherwise in respect of Senior Lender Claimsotherwise, or (zB) object to the forbearance by the Senior Lenders Lender from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Collateral; Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff set off and the right to credit bid their its debt) and make SFDOCS01/318383.4 13 Midway – Subordination Agreement determinations regarding the releasedisposition of, disposition or restrictions with respect to to, the Common Collateral without any consultation with or the consent of any Second-Priority Agent or any Second-Priority Secured Party; providedJunior Lender, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders shall have no obligation to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. marshal assets; In exercising rights and remedies with respect to the Collateral, Senior Lender Collateral, the Intercreditor Agent and the Senior Lenders may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they it may determine in the exercise of their its sole commercial discretion. Such exercise and enforcement shall include the rights of an agent appointed by them it to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any all applicable jurisdictionbankruptcy or other laws. (b) So long as Notwithstanding anything to the Discharge contrary and in accordance with the terms of this Agreement, the Junior Lender shall be entitled to do any of the following without the consent or any notice to the Senior Lender (collectively, the “Permitted Non-Blockable Actions”): make any demand for payment (provided that payment shall be subject to the terms of this Agreement), charge any default rate of interest otherwise permitted hereunder, or deliver notices of default or reservations of rights or any Junior Default Notices; in any Proceeding commenced by or against any Obligor or any or its subsidiaries, file a claim or statement of interest with respect to the Junior Debt; take any action (not adverse to the prior Liens on the Collateral securing the Senior Debt, or the rights of Senior Lender Claims has not occurredto exercise remedies in respect thereof) in order to preserve or protect its Lien on the Collateral; file any necessary responsive or defensive pleadings in opposition to any motion, each Second-Priority Agentclaim, on behalf adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of itself and each applicable Second-Priority Secured Partythe claims of Junior Lender, agrees that it will notincluding without limitation any claims secured by the Collateral, if any, in each case subject to the context terms of this Agreement; file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of any Loan Party or its role subsidiaries arising under either the Bankruptcy Code or applicable non-bankruptcy law, in each case, except as secured creditorotherwise specifically prohibited elsewhere in this Agreement and provided that such is not adverse to the prior Liens on the Collateral securing the Senior Debt, or the rights of Senior Lender to exercise remedies in respect thereof; SFDOCS01/318383.4 14 Midway – Subordination Agreement take any action to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims, or to assert a compulsory cross-claim or counterclaim against any Obligor; take any action to seek and obtain specific performance or injunctive relief to compel any Obligor to comply with (or not violate or breach) an obligation under the Junior Debt Documents, in each case not inconsistent with the terms of this Agreement and so long as such action does not require the making of any payments of any Junior Debt or any other monetary payment by any Obligor; vote on any plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition or extension), filing any proof of claim, making other filings and making any arguments and motions that are, in each case, not inconsistent with the terms of this Agreement; join (but not exercising control over) a judicial foreclosure or Senior Enforcement Action proceeding with respect to the Collateral initiated by the Senior Lender provided, that such action could not reasonably be expected to interfere with any Senior Enforcement Action of the Senior Lender, and provided, further, that Junior Lender may not receive any Common Collateral proceeds thereof unless permitted herein; permit the release, discharge or any proceeds of Common Collateral in connection with the exercise lapse of any right or remedy (including setoff) lien of Junior Lender; enforce the terms of any subordination agreement with respect to any Common Collateral in respect indebtedness subordinated to the Junior Debt to the extent that such action could not reasonably be expected to interfere with any Senior Enforcement Action of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties Lender; with respect to the Common Collateral is to hold a Lien any public disposition of Collateral, credit bid on the Common any Collateral in respect which Junior Lender has a lien, in accordance with Section 363(k) of the Bankruptcy Code or other applicable Second-Priority Claims law, so long as such bid includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient to pay in full in cash all outstanding Senior Debt and any order approving such sale requires such amount to be so applied; or inspecting or appraising the Collateral or requesting information or reports concerning the Collateral pursuant to the Second-Priority Junior Debt Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, Junior Lender agrees that no Second-Priority Agent or any Second-Priority Secured Party it will not take any action as a secured party that would hinder hinder, delay, limit or prohibit any exercise of remedies undertaken by the Intercreditor Agent or under the Senior Lenders Debt Documents with SFDOCS01/318383.4 15 Midway – Subordination Agreement respect to the Common Collateral under Collateral, or that would limit, invalidate, avoid or set aside any Lien or Senior Debt Document or subordinate the priority of the Senior Loan Documents, including Debt or grant the Liens securing the Junior Debt equal ranking to the Liens securing any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and Senior Debt. (iid) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, Junior Lender hereby waives any and all rights it or any Second-Priority Secured Party may have solely in its capacity as a junior lien creditor with respect to the Collateral or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek Lender seeks to enforce or collect the Senior Lender Claims Debt or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or any of Senior Lenders Lender is adverse to the interests interest of the Second-Priority Secured PartiesJunior Lender. (de) Each Second-Priority Agent hereby acknowledges and agrees that no covenantNotwithstanding anything to the contrary in this Article 3, agreement nothing in this Article 3 shall restrict or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way otherwise impede the Junior Lender from exercising its rights and remedies as a secured creditor under the Junior Debt Documents so long as the Junior Lender is otherwise complying with the terms and conditions of this Agreement. (f) To the Intercreditor Agent or the Senior Lenders extent any payment with respect to any Senior Debt (whether by or on behalf of any Loan Party, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, the Senior Lender Collateral as set forth Junior Lender, a receiver or similar Person, whether in connection with any Proceeding or otherwise, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the Senior Lender Documentsand the Junior Lender, be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent that any interest, fees, expenses or other charges (including without limitation, post-petition interest) to be paid pursuant to the Senior Debt Documents are disallowed by order of any court, including without limitation by order of a bankruptcy court in any Proceeding, such interest, fees, expenses and charges (including without limitation post-petition interest) shall, as between the Senior Lender and the Junior Lender, be deemed to continue to accrue and be added to the amount to be calculated as the outstanding Senior Debt obligations.

Appears in 1 contract

Sources: Subordination Agreement (Midway Gold Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender First Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-the Second Lien Agent and the Second Priority Agent or any Second-Priority Secured Party Lenders will (x) not exercise or seek to exercise any rights or remedies (including setoffset-off) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First Lien Agent or any Senior Lender in respect of the Senior Lender ClaimsFirst Priority Lender, the exercise of any right by the Intercreditor Agent under any Second Priority Document or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, blocked account agreement, landlord waiver or bailee’s 's letter or similar agreement or arrangement to which any Second-Priority the Second Lien Agent or any Second-Second Priority Secured Party either Lender is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such partyPerson, of any rights and remedies relating to the Common Collateral under the Senior Lender First Priority Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior First Priority Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor First Lien Agent and the Senior First Priority Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Agent or any Second-Second Priority Secured PartyLender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority the Second Lien Agent may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims Claims, subject to the limitations contained in this agreement and (B) each Second-Priority the Second Lien Agent may take any action (not adverse to the prior Liens on the Common Collateral securing that secures the Senior Lender Second Priority Claims, or the rights of the Intercreditor First Lien Agent or the Senior First Priority Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, on the Common CollateralCollateral so long as such action is consistent with the terms and limitations on the Second Lien Agent and the Second Priority Lenders imposed by this Agreement. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor First Lien Agent and the Senior First Priority Lenders may enforce the provisions of the Senior Lender First Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of the Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code and under the comparable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority The Second Lien Agent, on behalf of itself and each applicable Second-the Second Priority Secured PartyLenders, agrees that it will notnot take or receive, directly or indirectly, in the context of its role as secured creditorcash or other property or by setoff, take counterclaim or receive in any other manner (whether pursuant to any enforcement, collection, execution, levy or foreclosure proceeding or otherwise), any Common Collateral or any proceeds of such Common Collateral Collateral, in each case in connection with the exercise of any right or remedy (including setoffset-off) with respect to any such Common Collateral (or in respect of any such Common Collateral in respect the event of the applicable Second-occurrence of an Insolvency or Liquidation Proceeding with respect to a Grantor), unless and until the Discharge of First Priority ClaimsClaims has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender First Priority Claims has occurred, except as expressly provided in the proviso in clause (ii) to the first sentence of Section 3.1(a)) above, the sole right of the Second-Priority Agents Second Lien Agent and the Second-Second Priority Secured Parties Lenders with respect to the such Common Collateral is to hold a Lien on the such Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Second Priority Documents, as applicable, Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender the First Priority Claims has occurred. (c) Subject to the proviso in clause (ii) to the first sentence of Section 3.1(a)) above and without limiting the effect of other provisions of this Agreement, (i) each Second-Priority the Second Lien Agent, for itself and on behalf of each applicable Second-the Second Priority Secured PartyLenders, agrees that no Second-the Second Lien Agent and the Second Priority Agent or any Second-Priority Secured Party Lenders will not take any action that would hinder any exercise of remedies undertaken by the Intercreditor First Lien Agent or under the Senior Lenders First Priority Documents with respect to the Common Collateral under the Senior Loan DocumentsCollateral, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority the Second Lien Agent, for itself and on behalf of each applicable Second-the Second Priority Secured PartyLenders, hereby waives any and all rights it or any Second-the Second Priority Secured Party Lenders may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Lien Agent or the Senior First Priority Lenders seek to enforce or collect the Senior Lender First Priority Claims or the Liens granted in any of the Senior Lender First Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First Lien Agent or Senior First Priority Lenders is adverse to the interests interest of the Second-Second Priority Secured PartiesLenders. (d) Each Second-The Second Lien Agent, on behalf of itself and the Second Priority Agent Lenders, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First Lien Agent or the Senior First Priority Lenders with respect to the Senior Lender Common Collateral as set forth in this Agreement and the Senior Lender First Priority Documents.

Appears in 1 contract

Sources: Intercreditor Agreement (McLeodusa Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and (E) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender CollateralCollateral or any forbearance with respect to the foregoing, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative who may be instructed by the Second Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 1 contract

Sources: Credit Agreement (Laureate Education, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Junior Priority Agent or Representative nor any Second-Junior Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Junior Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Junior Priority Agent Representative or any Second-Junior Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Junior Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Junior Priority Claims and Debt Obligations under its Junior Priority Debt Facility, (B) each Second-any Junior Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) any Junior Priority Representative may exercise the rights and remedies provided for in Section 6.03 and (E) from and after the Junior Priority Enforcement Date, the Major Junior Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral and (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (Weight Watchers International Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender First Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent none of the Subordinated Lien Debt Representatives or any Second-Priority the Subordinated Lien Secured Party Parties will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority Subordinated Lien Claims, make any claim or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Agent First Priority Lien Collateral Trustee or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender First Priority Lien Holder (or any agent or sub-agent on their behalf) in respect of the Senior Lender First Priority Claims, the exercise of any right by the First Priority Lien Collateral Trustee or any First Priority Lien Holder (or any agent or sub-agent on their behalf) in respect of the First Priority Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Subordinated Lien Debt Representative or any Second-Priority Subordinated Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender First Priority Lien Debt Documents or otherwise in respect of Senior Lender First Priority Claims, or (z) object to the forbearance by the Senior Lenders First Priority Lien Holders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims First Priority Claims; and (ii) except as otherwise provided hereinset forth in this clause (ii), the Intercreditor Agent First Priority Lien Collateral Trustee and the Senior Lenders First Priority Lien Holders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debtbid) and to the extent provided herein make determinations regarding the release, disposition or restrictions with respect to the Common Collateral Collateral, and each Subordinated Lien Secured Party hereby affirmatively consents to any such release, disposition or restriction without any requirement of further consultation with or the any additional consent of any Second-Priority Agent Subordinated Lien Debt Representative or any Second-Priority Subordinated Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent Subordinated Lien Debt Representative may file a proof of claim or statement of interest with respect to the applicable Second-Priority Subordinated Lien Claims and (B) each Second-Priority Agent Subordinated Lien Debt Representative may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst Priority Liens, or the rights of the Intercreditor Agent First Priority Lien Collateral Trustee or the Senior Lenders First Priority Lien Holders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender First Priority Lien Collateral, the Intercreditor Agent First Priority Lien Collateral Trustee and the Senior Lenders First Priority Lien Holders may enforce the provisions of the Senior Lender First Priority Lien Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole and absolute discretion. Such exercise and enforcement shall include the rights of an agent or receiver appointed by them to sell or otherwise dispose of Common Collateral upon foreclosureCollateral, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code or other laws of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws Law of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender First Priority Claims has not occurred, each Second-Priority AgentSubordinated Lien Debt Representative, on behalf of itself and each applicable Second-Priority Subordinated Lien Secured Party, agrees that it will not, in the context of its role as secured creditor, a creditor holding a security interest in or lien upon the Common Collateral take or receive any Common Collateral or any proceeds of Common Collateral in connection with (i) the exercise of any right or remedy (including setoff) with respect to any Common Collateral or (ii) in connection with any Insolvency or Liquidation Proceeding in respect of the applicable Second-Priority Subordinated Lien Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender First Priority Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Subordinated Lien Debt Representatives and the Second-Priority Subordinated Lien Secured Parties with respect to the Common Collateral or the proceeds thereof, whether or not an Insolvency or Liquidation Proceeding has commenced, is to hold a junior Lien on the Common Collateral in respect of the applicable Second-Priority Subordinated Lien Claims pursuant to the Second-Priority Subordinated Lien Debt Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender First Priority Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority AgentSubordinated Lien Debt Representative, for itself and on behalf of each applicable Second-Priority Subordinated Lien Secured Party, Party (i) agrees that no Second-Priority Agent Subordinated Lien Debt Representative or any Second-Priority Subordinated Lien Secured Party will take any action that would hinder any exercise of rights or remedies undertaken by the Intercreditor Agent First Priority Lien Collateral Trustee or the Senior Lenders First Priority Lien Holders with respect to the Common Collateral under the Senior Loan DocumentsFirst Priority Lien Debt Documents or applicable law, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise or whether in connection with an Insolvency or Liquidation Proceeding or otherwise, ; and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Subordinated Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent First Priority Lien Collateral Trustee or the Senior Lenders First Priority Lien Holders seek to protect, enforce or collect the Senior Lender First Priority Claims or the Liens granted in any of the Senior Lender CollateralFirst Priority Lien Collateral or to any actions taken by or with respect to the Company, its Affiliates or other Grantors or their respective properties whether as part of any Insolvency or Liquidation Proceeding or otherwise, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent First Priority Lien Collateral Trustee or Senior Lenders First Priority Lien Holders is adverse to the interests of the Second-Priority Subordinated Lien Secured Parties. (d) Each Second-Priority Agent Subordinated Lien Debt Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Subordinated Lien Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent First Priority Lien Collateral Trustee or the Senior Lenders First Priority Lien Holders with respect to the Senior Lender First Priority Lien Collateral as set forth in this Agreement and the Senior Lender First Priority Lien Debt Documents.

Appears in 1 contract

Sources: Credit Agreement (Lbi Media Holdings Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has Obligations have not occurredbeen paid in full, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any of its Subsidiaries (other Grantorthan Excluded Subsidiaries), (i) no Second-Priority the Junior Collateral Agent or any Second-Priority and the Junior Obligations Secured Party Parties (by their acceptance of the benefits of the Junior Documents) will not (x1) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Senior Obligations Collateral in respect of any applicable Second-Priority Claimssecuring the Junior Obligations, (2) institute any action or proceeding with respect to such rights or remedies Senior Obligations Collateral securing the Junior Obligations (including including, without limitation, any action of foreclosure), contest or protest) or (y3) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Senior Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, Obligations Secured Party or the exercise of any right by the Intercreditor Agent or under any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter Obligations Collateral Document or similar agreement or arrangement to which any Second-Priority the Senior Collateral Agent or any Second-Priority Senior Obligations Secured Party either is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such party, party of any rights and remedies remedies, in each case relating to the Common Senior Obligations Collateral under the Senior Lender Documents or otherwise in respect otherwise; or, except as provided herein, object to any release of any or all of the Senior Lender ClaimsObligations Collateral for any purpose, or (z) object to the forbearance by the Senior Lenders Collateral Agent or Senior Obligations Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect Senior Obligations Collateral; provided, however, that nothing herein shall be construed to impair the right of Senior Lender Claims the Junior Obligations Secured Parties to exercise their rights and remedies as unsecured creditors pursuant to Section 5.4 of this Agreement; and (ii) except as otherwise provided hereinsubject to the rights of the Junior Collateral Agent and the Junior Obligations Secured Parties under the proviso to clause (i) above, the Intercreditor Senior Collateral Agent and the Senior Lenders Obligations Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Senior Obligation Collateral without any consultation with or the consent of any Second-Priority the Junior Collateral Agent or any Second-Priority other Junior Obligations Secured Party, and the Junior Collateral Agent shall take any action reasonably requested by the Senior Collateral Agent in order to effectuate any such enforcement, exercise, release or disposition; provided, however, that (Ax) in any Insolvency or Liquidation Proceeding commenced by or against any Loan Party, the Company or any other Grantor, each Second-Priority Junior Collateral Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims Junior Obligations Collateral, (y) the Junior Collateral Agent and (B) each Second-Priority Agent the Junior Obligations Secured Parties may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Obligations Secured Parties in order to create, prove, perfect, preserve or protect (but not enforce) its their rights inin the Senior Obligations Collateral and the Junior Collateral Agent may act in coordination with, and perfection and priority of its Lien onnot in a manner adverse to, the Common Senior Collateral Agent and the Senior Obligations Secured Parties in exercising any remedies initiated by the Senior Collateral Agent or Senior Obligations Secured Parties with respect to the Senior Obligations Collateral, and (z) at any time that a Junior Obligations Event of Default has occurred and as long as such Junior Obligations Event of Default is continuing, the Required Revolving Facility Lenders or the Required Term Facility Lenders, as applicable, may instruct the applicable Junior Administrative Agent to declare Junior Obligations under the applicable Junior Credit Agreement to be forthwith due and payable in accordance with Section 6.01 of the applicable Junior Credit Agreement, whereupon the Junior Obligations shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind. In exercising rights and remedies with respect to the Senior Lender Obligations Collateral, the Intercreditor Senior Collateral Agent and each Senior Obligations Secured Party (by its acceptance of the benefits of the Senior Lenders Documents) may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion, subject to acting in a commercially reasonable manner in accordance with the UCC and the terms of this Agreement and the other Senior Documents. Such exercise and enforcement shall include include, without limitation, the rights of an agent appointed by them to sell or otherwise dispose of Common such Senior Obligations Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdictionDebtor Relief Laws. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself The Junior Collateral Agent and each applicable Second-Priority Junior Obligations Secured Party, Party (by its acceptance of the benefits of the Junior Documents) agrees that it will shall not, in with respect to the context of its role as secured creditorJunior Obligations, take or receive from or on behalf of any Common Loan Party or any Subsidiary of a Loan Party, directly or indirectly, in cash or other property or by setoff, counterclaim or in any other manner (whether pursuant to any enforcement, collection, execution, levy, foreclosure action or other proceeding or otherwise) any Senior Obligations Collateral or any proceeds of Common Collateral Senior Obligations Collateral, unless and until all Senior Obligations have been paid in connection full in accordance with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority ClaimsSection 3.2 hereof. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurredObligations have been paid in full, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)herein, the sole right of the Second-Priority Agents Junior Collateral Agent and the Second-Priority Junior Obligations Secured Parties with respect to the Common Senior Obligations Collateral is to hold a Lien on the Common Senior Obligations Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Junior Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after payment in full of the Discharge Senior Obligations; provided, however, that nothing in this paragraph shall be construed to impair the right of the Junior Obligations Secured Parties to receive payments of principal, interest, fees and other amounts in respect of the Junior Obligations as provided for in the applicable Credit Agreement and the Notes referred to in such applicable Credit Agreement, and to enforce the making of such payments by bringing suit at law (but not, except as provided in Section 3.1(a)(i) above, to exercise any rights in respect of the Liens of the Junior Collateral Agent on the Senior Lender Claims has occurred. Obligations Collateral) with respect to any unpaid amounts of such payments. Each of the Junior Collateral Agent and the Junior Obligations Secured Parties (c) Subject to by its acceptance of the proviso in clause (ii) benefits of Section 3.1(a), the Junior Documents): (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, further agrees that no Second-Priority the Junior Collateral Agent or any Second-Priority and the other Junior Obligations Secured Party Parties will not take any action that would hinder be reasonably likely to (w) hinder, delay, limit, impede or prohibit any exercise of remedies undertaken by the Intercreditor Senior Collateral Agent or to the extent related to satisfying the Senior Lenders with respect to the Common Collateral under the Senior Loan DocumentsObligations, including any collection, sale, lease, exchange, transfer or other disposition of the Common Senior Obligations Collateral, whether by foreclosure or otherwise, (x) limit, invalidate, avoid or set aside any Senior Lien or Collateral Document securing or purporting to secure the Senior Obligations, (y) subordinate the priority of the Senior Liens to the Junior Liens or (z) grant the Junior Liens securing the Junior Obligations equal ranking to the Senior Liens securing the Senior Obligations and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have (other than as specified herein) as a junior lien creditor or otherwise (whether arising under the UCC or under any other applicable law) to object to the manner in which the Intercreditor Senior Collateral Agent or the Senior Lenders Obligations Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or enforce the Senior Liens now or hereafter granted in any of Senior Obligations Collateral to secure the Senior Lender CollateralObligations, regardless of whether any action or failure to act by or on behalf of the Intercreditor Senior Collateral Agent or the Senior Lenders Obligations Secured Parties is adverse to the interests interest of the Second-Priority Junior Obligations Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Intercreditor Agreement (Dana Holding Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or neither any Second-Priority Junior Representative nor any Junior Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Priority ClaimsJunior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Designated Senior Representative, any Second-Priority Agent other Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Priority Agent Junior Representative or any Second-Priority Junior Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent any Junior Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Priority Claims and Junior Obligations under its Junior Debt Facility, (B) each Second-Priority Agent any Junior Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with or prohibited by this Agreement, any Junior Representative and the Junior Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) any Junior Representative may exercise the rights and remedies provided for in Section 6.03 and may vote on a proposed Plan of Reorganization in any Insolvency or Liquidation Proceeding of the Company or any other Grantor in accordance with the terms of this Agreement (including Section 6.12), (E) any Junior Representative and the Junior Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Secured Parties, including any claims secured by the Junior Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Junior Enforcement Date, the Designated Junior Representative or any person authorized by it may exercise or seek to exercise any rights or remedies with respect to any Shared Collateral in respect of any Junior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), in each case of clauses (A) through (F) above, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Indenture (Amc Entertainment Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company a Borrower or any other GrantorPledgor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company a Borrower or any other GrantorPledgor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. , (C) in any Insolvency or Liquidation Proceeding commenced by or against a Borrower or any other Pledgor, each Second Priority Agent may file any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Party, (D) each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of a Borrower or any other Pledgor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law and (E) each Second Priority Agent and each Second Priority Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of a Borrower or any other Pledgor, in each case (A) through (E) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. (b) In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (bc) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or other collateral or any proceeds of Common Collateral or other collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral or other collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties with respect to the Common Collateral or any other collateral is to hold a Lien on the Common Collateral or such other collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (cd) Subject to the proviso in clause (ii) of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders Secured Parties with respect to the Common Collateral or any other collateral under the Senior Loan Lender Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders Secured Parties is adverse to the interests of the Second-Second Priority Secured Parties. (de) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor any First Lien Agent or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, that the Designated Second Priority Representative may exercise any or all such rights (but not rights the exercise of which is otherwise prohibited by this Agreement including Article VI hereof) after a period (the “Standstill Period”) of 180 consecutive days has elapsed from the date of delivery of written notice from the Designated Second Priority Representative to the Senior Representative stating that (A) an Event of Default (as defined under the Second Priority Debt Documents) has occurred and is continuing thereunder, (B) the Second Priority Debt Obligations are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the Second Priority Debt Documents, and (C) the Designated Second Priority Representative intends to exercise its rights to take such actions, only so long as the Senior Representative or Senior Secured Parties are not then diligently pursuing their rights and remedies with respect to all or a material portion of the Shared Collateral or diligently attempting to vacate any stay or prohibition against such exercise or the Company or any other Grantor is then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding, (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent the Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representative and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-any Second Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representative or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Article VI, (E) in any Insolvency or Liquidation Proceeding, any Second Priority Secured Party may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Secured Parties, including without limitation any claims secured by the Shared Collateral, if any, in each case in accordance with the terms of this Agreement, and (F) in any Insolvency or Liquidation Proceeding, the Second Priority Secured Parties may vote on any plan of reorganization, but only to the extent consistent with the provisions hereof. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representative and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff and recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representative or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representative or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, the Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 1 contract

Sources: Credit Agreement (Samson Resources Corp)

Exercise of Remedies. (a) So Subject to Section 3.1(f), so long as the Discharge of Senior Lender Claims First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Holdings, the Company Borrower or any other Grantor, : (i) no the Second-Priority Lien Collateral Agent or any and the other Second-Priority Secured Party Lien Creditors will (x) not exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect (including, without limitation, the exercise of any applicable right under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second-Priority ClaimsLien Collateral Agent or any Second-Lien Creditor is a party) or institute or commence, institute or join with any Person in commencing, any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution and any Insolvency or Liquidation Proceeding), (y) and will not contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First-Lien Collateral Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or subother First-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, Lien Creditor or any other exercise by the First-Lien Collateral Agent or any such partyother First-Lien Creditor, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Lien Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior Lenders First-Lien Collateral Agent or the other First-Lien Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Collateral; and (ii) except as otherwise provided hereinthe First-Lien Collateral Agent shall have the exclusive right, the Intercreditor Agent and the Senior Lenders Required First-Lien Creditors shall have the exclusive right to instruct the First-Lien Collateral Agent, to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any the Second-Priority Lien Collateral Agent or any other Second-Priority Secured PartyLien Creditor, all as though the Second-Lien Obligations did not exist; provided, however, that that: (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each the Second-Priority Lien Collateral Agent may file a claim or statement of interest with respect to the applicable Second-Priority Claims and Lien Obligations; (B) each the Second-Priority Lien Collateral Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Lien Obligations, or the rights of the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien onon the Collateral in accordance with the terms of this Agreement; and (C) the Second-Lien Creditors shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the Common disallowance of the claims of the Second-Lien Creditors, including any claim secured by the Collateral, if any, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First-Lien Collateral Agent and the Senior Lenders other First-Lien Creditors may enforce the provisions of the Senior Lender First-Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each The Second-Priority Lien Collateral Agent, on behalf of itself and each applicable the Second-Priority Secured PartyLien Creditors, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral, unless and until the Discharge of First-Lien Obligations has occurred and, to the extent any Collateral or the proceeds thereof are taken or received in connection with the exercise of a right or remedy with respect of to the applicable Collateral by the Second-Priority ClaimsLien Collateral Agent or any Second-Lien Creditor, then such Collateral or proceeds shall be paid over to the First-Lien Collateral Agent in accordance with Section 4.2. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First-Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Lien Collateral Agent and the other Second-Priority Secured Parties Lien Creditors with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Lien Security Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims First-Lien Obligations has occurredoccurred in accordance with the terms of the Second-Lien Note Documents and applicable law. (c) Subject to The Second-Lien Collateral Agent and each other Second-Lien Creditor (by its acceptance of the proviso in clause (ii) benefits of Section 3.1(athe Second-Lien Note Documents), (i) each agrees that the Second-Priority Agent, for itself Lien Collateral Agent and on behalf of each applicable the other Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party Lien Creditors will not take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan First-Lien Documents, including any collection, sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or Security Document or subordinate the priority of the First-Lien Obligations to the Second-Lien Obligations or grant the Liens securing the Second-Lien Obligations equal ranking to the Liens securing the First-Lien Obligations and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any the Second-Priority Secured Party Lien Creditors may have as a junior lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors seek to enforce or collect the Senior Lender Claims First-Lien Obligations or the Liens granted in any of the Senior Lender First-Lien Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First-Lien Collateral Agent or Senior Lenders First-Lien Creditors is adverse to the interests interest of the Second-Priority Secured PartiesLien Creditors. (d) Each Second-Priority Agent Lien Creditor (by its acceptance of the benefits of the Second-Lien Note Documents) hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable the Second-Priority Lien Security Documents or any other Second-Lien Note Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First-Lien Collateral Agent or the Senior Lenders other First-Lien Creditors with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender First-Lien Documents. (e) [Reserved]. (f) Notwithstanding anything to the contrary in preceding clauses (a) through (e) of this Section 3.1, at any time after the Second-Lien Enforcement Date, the Second-Lien Collateral Agent, for itself and on behalf of the Second-Lien Creditors, and the other Second-Lien Creditors may, but only if the First-Lien Collateral Agent or the First-Lien Creditors are not pursuing or exercising remedies with respect to the Collateral (with any determination of which Collateral to proceed against, and in what order, to be made by the First-Lien Collateral Agent or such First-Lien Creditors in their sole discretion), enforce the Liens on Collateral granted pursuant to the Second-Lien Security Documents, provided that (x) any Collateral or any proceeds of Collateral received by the Second-Lien Collateral Agent or such other Second-Lien Creditor, as the case may be, in connection with the enforcement of such Lien shall be applied in accordance with Section 4 hereof and (y) the First-Lien Collateral Agent or any other First-Lien Creditors may at any time take over such enforcement actions or proceedings, provided that the First-Lien Collateral Agent or such First-Lien Creditors, as the case may be, pursues enforcement proceedings with respect to the Collateral, with any determination of which Collateral to proceed against, and in what order, to be made by the First-Lien Collateral Agent or such First-Lien Creditors in their sole discretion, and provided further that the Second-Lien Collateral Agent or Second-Lien Creditors, as the case may be, shall only be able to recoup (from amounts realized by the First-Lien Collateral Agent or any First-Lien Creditors) in any enforcement proceeding with respect to the Collateral (whether initiated by the First-Lien Collateral Agent or First-Lien Creditors or taken over by them as contemplated above) any expenses incurred by them in accordance with the priorities set forth in Section 4 hereof.

Appears in 1 contract

Sources: Intercreditor Agreement (Appvion, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company any Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsDebt Obligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Debt Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Debt Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Debt Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the care or preservation of the Shared Collateral, or the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party, and to incur expenses in connection with the foregoing; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company any Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Debt Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) the Second Priority Debt Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Debt Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, and (E) from and after the Second Priority Enforcement Date, the Designated Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion and without consultation with any Second Priority Representative or any other Second Priority Debt Party and regardless of whether any such exercise is adverse to the interest of any Second Priority Debt Party. Such exercise and enforcement shall include the rights of an agent appointed by them the Senior Representative and/or the Senior Secured Parties to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Debt Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Subject to Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section 3.01(e) shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 1 contract

Sources: First Lien/Second Lien Intercreditor Agreement (Cloud Peak Energy Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender First Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-the Second Priority Agent or any Second-Agents and the Second Priority Secured Party Lenders will (x) not exercise or seek to exercise any rights or remedies (including setoffset-off) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Credit Agent or any Senior Lender in respect of the Senior Lender ClaimsFirst Priority Lender, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, blocked account agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either Lender is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such partyPerson, of any rights and remedies relating to the Common Collateral under the Senior Lender First Priority Documents or otherwise in respect of Senior Lender Claimsotherwise, or (z) object to the forbearance by the Senior First Priority Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor Credit Agent and the Senior First Priority Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured PartyLender; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-a Second Priority Agent may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims Claims, and (B) each Second-a Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender First Priority Claims, or the rights of the Intercreditor Credit Agent or the Senior First Priority Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, on the Common Collateral. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor Credit Agent and the Senior First Priority Lenders may enforce the provisions of the Senior Lender First Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code and under the comparable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (Tenneco Inc)

Exercise of Remedies. (a) So long as Until the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Symmetry or any other Grantor, neither the Junior Agent nor any Junior Secured Party will: (i) no Second-Priority Agent or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect subject to any Senior Lien (including the exercise of any applicable Second-Priority Claimsright of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Junior Agent or such Junior Secured Party is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, that the parties hereto acknowledge and agree that this Section shall not in any way prohibit the Junior Agent or any Junior Secured Party from exercising any of its rights during an Insolvency or Liquidation Proceeding to the extent permitted by the other provisions hereof; (yii) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Senior Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by the Senior Agent or any such party, Senior Secured Party of any rights and remedies relating to the any Common Collateral subject to the Senior Agent’s or such Senior Secured Party’s Senior Lien, whether under the applicable Senior Lender Credit Documents or otherwise in respect of Senior Lender Claims, or otherwise; or (ziii) object to the forbearance by the Senior Lenders Agent or any Senior Secured Party from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the any Common Collateral subject to the Senior Agent’s or such Senior Secured Party’s Senior Lien; provided, that the Junior Liens granted on such Common Collateral shall attach to any Proceeds of such Common Collateral resulting from actions taken by the Senior Agent or any Senior Secured Party in respect accordance with this Agreement, subject to the relative priorities set forth in Article II. (b) Subject to the terms and conditions of this Agreement, until the Discharge of Senior Lender Claims and (ii) except as otherwise provided hereinObligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Symmetry or any other Grantor, the Intercreditor Senior Agent and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the any release, disposition Disposition or restrictions with respect to the any Common Collateral subject to their Senior Liens without any consultation with or the consent of any Second-Priority the Junior Agent or any Second-Priority Junior Secured Party; provided, howeverthat the Junior Liens on such Common Collateral shall remain on the Proceeds of such Common Collateral released or Disposed of, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Priority Agent may file a claim or statement of interest with respect subject to the applicable Second-Priority Claims and (B) each Second-Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies relative priorities set forth in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralArticle II. In exercising rights and remedies with respect to the Common Collateral subject to their Senior Lender CollateralLiens, the Intercreditor Senior Agent and the each Senior Lenders Secured Party may enforce the provisions of the applicable Senior Lender Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights right of an any agent appointed by them to sell or otherwise dispose Dispose of such Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, Disposition and to exercise all the rights and remedies of a secured lender creditor under the Uniform Commercial Code of any applicable jurisdiction UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (bc) So long Notwithstanding the foregoing provisions of this Section, the Junior Agent and any Junior Secured Party may: (i) file a claim or statement of interest with respect to its Junior Obligations in any Insolvency or Liquidation Proceeding that has been commenced by or against Symmetry or any other Grantor; (ii) take any action (not adverse to the priority status of any Senior Liens on the Common Collateral or the rights of the Senior Agent or any Senior Secured Party to exercise rights and remedies in respect thereof) in order to create, perfect, preserve or protect its Junior Lien on the Common Collateral; (iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Junior Secured Parties, including any claims secured by the Common Collateral, if any, in each case in accordance with the terms of this Agreement; (iv) exercise their rights and remedies as unsecured creditors, as provided in paragraph (e) of this Section; and (v) exercise the Discharge of Senior Lender Claims has not occurred, each Second-Priority rights and remedies provided for in Section 6.03(b). The Junior Agent, on behalf of itself and each applicable Second-Priority the Junior Secured PartyParties, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral subject to any Senior Lien or any proceeds Proceeds of any such Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any such Common Collateral in respect violation of the applicable Second-Priority Claimsthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause Section 6.03(b) and this paragraph (ii) of Section 3.1(ac), the sole right of the Second-Priority Agents Junior Agent and the Second-Priority each Junior Secured Parties Party with respect to the any Common Collateral subject to any Senior Lien is to hold a Junior Lien on the such Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, applicable Junior Collateral Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, remaining after the Discharge of Senior Lender Claims Obligations has occurred. (cd) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority The Junior Agent, for itself and on behalf of each applicable Second-Priority the Junior Secured Party, Parties: (i) agrees that no Second-Priority Agent or any Second-Priority it and such Junior Secured Party Parties will not take any action that would hinder or delay any exercise of rights or remedies undertaken by under the Intercreditor Agent Senior Credit Documents or the Senior Lenders with respect to realization of the full value of the Common Collateral under on which the Senior Loan DocumentsAgent has Senior Liens or would otherwise be prohibited hereunder, including any sale, lease, exchange, transfer or other disposition Disposition of the any Common CollateralCollateral subject to any Senior Lien, whether by foreclosure or otherwise, and ; (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority such Junior Secured Party Parties may have as a junior lien creditor creditors or otherwise to object to the manner in which the Intercreditor Senior Agent or the any Senior Lenders seek Secured Party seeks to enforce or collect any Senior Obligations or to enforce or realize on the Senior Lender Claims or the Liens granted undertaken in any of the Senior Lender Collateralaccordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the Intercreditor Senior Agent or any Senior Lenders Secured Party is adverse to the interests of the Second-Priority Junior Secured Parties.; and (diii) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Junior Collateral Documents or any applicable Second-Priority other Junior Credit Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Intercreditor Senior Agent or the any Senior Lenders Secured Party with respect to the Common Collateral subject to any Senior Lender Collateral Lien as set forth in this Agreement and the Senior Lender Credit Documents. (e) Except as otherwise specifically set forth in paragraphs (a) and (d) of this Section, the Junior Agent and any Junior Secured Party may exercise rights and remedies available to it as an unsecured creditor of Symmetry or any other Grantor in accordance with the terms of the Junior Credit Documents and applicable law; provided that in the event that any Junior Secured Party becomes a judgment Lien creditor in respect of any Common Collateral subject to any Senior Lien as a result of its enforcement of its rights as an unsecured creditor with respect to the applicable Junior Obligations, such judgment Lien shall be subject to the terms of this Agreement to the same extent as the other Liens securing the Junior Obligations. Nothing in this Agreement shall prohibit the receipt by the Junior Agent or any Junior Secured Party of the required or permitted payments of interest, principal and other amounts owed in respect of the Junior Obligations so long as such receipt is not the direct or indirect result of the exercise by the Junior Agent or any Junior Secured Party of rights or remedies as a secured creditor (including the exercise of any right of setoff) or enforcement in contravention of this Agreement of any Junior Lien held by any of them. Nothing in this Agreement shall be construed to impair or otherwise adversely affect any rights or remedies the Senior Agent or any Senior Secured Party may have with respect to any Common Collateral subject to its Senior Liens. (f) Subject to Section 2.03, nothing in this Agreement shall restrict the Revolving Credit Agent or any Revolving Credit Secured Party from exercising any right or remedy or taking any other action with respect to (i) Revolving Credit Collateral that does not constitute Common Collateral and (ii) any Canadian ABL Collateral.

Appears in 1 contract

Sources: Lien Subordination and Intercreditor Agreement (Symmetry Holdings Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First-Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Companies or any other Grantor, (i) no Second-Priority Agent Representative or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsObligations, institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor any First-Priority Collateral Agent or any Senior Lender First-Priority Secured Party in respect of the Senior Lender ClaimsFirst-Priority Obligations, the exercise of any right by the Intercreditor any First-Priority Collateral Agent or any Senior Lender First-Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims First-Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Representative or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Priority Documents or otherwise in respect of Senior Lender ClaimsFirst-Priority Obligations, or (z) object to the forbearance by the Senior Lenders First-Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims First-Priority Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent First-Priority Collateral Agents and the Senior Lenders First-Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second- Priority Agent Representative or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Companies or any other Grantor, each Second-Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Priority Claims Obligations and (B) each Second-Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Priority Obligations, or the rights of the Intercreditor Agent First-Priority Collateral Agents or the Senior Lenders First-Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender First-Priority Collateral, the Intercreditor Agent First-Priority Collateral Agents and the Senior Lenders First-Priority Secured Parties may enforce the provisions of the Senior Lender First-Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (Presidio, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrowers or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or other action brought with respect to the Common Shared Collateral or any other Senior Priority Collateral by the Intercreditor Agent any Senior Priority Representative or any Senior Lender Priority Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Priority Representative or any Senior Lender Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Senior Priority Agent Representative or any Second-Senior Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Priority Debt Documents or otherwise in respect of the Senior Lender ClaimsPriority Collateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Priority Representatives and the Senior Lenders Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral or any other Senior Priority Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrowers or any other Grantor, each Second-any Second Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Second Priority Claims Debt Obligations under its Second Priority Debt Facility in a manner that is consistent with the terms and conditions of this Agreement, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided and subject to the restrictions contained in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance that is not permitted by this Agreement of the claims or Liens of the Second Priority Secured Parties or the avoidance of any Second Priority Lien to the extent not inconsistent with the terms of this Agreement, (E) any Second Priority Secured Party may (subject to the provisions of Section 6.10(b)) vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement, and (F) from and after the Second Priority Enforcement Date, but subject to the terms of the ABL Intercreditor Agreement with respect to the ABL Collateral, the Designated Second Priority Representative (or such other Person, if any, as is so authorized under the Second Lien Intercreditor Agreement) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) a Senior Priority Representative has not commenced and is not diligently pursuing any enforcement action with respect to a material portion of Shared Collateral or (2) any Grantor which has granted a security interest in any Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Priority Collateral, the Intercreditor Agent Senior Priority Representatives and the Senior Lenders Priority Secured Parties may enforce the provisions of the Senior Lender Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code or any other applicable Law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, except as expressly provided in the proviso to clause (ii) of Section 3.01(a) but subject to Section 4.01, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Party will take any action that would hinder or delay any exercise of remedies undertaken by the Intercreditor Agent any Senior Priority Representative or the any Senior Lenders Priority Secured Party with respect to the Common Shared Collateral under the Senior Loan Priority Debt Documents, including any sale, lease, exchange, transfer or other disposition Disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Priority Representative or any other Senior Lenders Priority Secured Party is adverse to the interests of the Second-Second Priority Secured Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Priority Representatives or the Senior Lenders Priority Secured Parties with respect to the Senior Lender Priority Collateral as set forth in this Agreement and the Senior Lender Priority Debt Documents. (e) Until the Discharge of Senior Obligations, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Designated Second Priority Representative (or any Person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Secured Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Secured Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Secured Parties or the Second Priority Debt Obligations.

Appears in 1 contract

Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 and (E) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Second Priority Instructing Group and the Designated Second Priority Representative shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Second Priority Instructing Group and Designated Second Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 1 contract

Sources: Credit Agreement (Serena Software Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Priority Agent or neither any Second-Priority Junior Representative nor any Junior Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Priority ClaimsJunior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent Designated Senior Representative, any other Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Designated Senior Representative, any Second-Priority Agent other Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties (or any Person authorized thereby) shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Priority Agent Junior Representative or any Second-Priority Junior Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Priority Agent any Junior Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Priority Claims and Junior Obligations under its Junior Debt Facility, (B) each Second-Priority Agent any Junior Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Designated Senior Representative, the other Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) to the extent not otherwise inconsistent with, or prohibited by, this Agreement, any Junior Representative and the Junior Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided in Section 5.04, (D) any Junior Representative may exercise the rights and remedies provided for in Section 6.03 and may vote on a proposed Plan of Reorganization in any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor in accordance with the terms of this Agreement (including Section 6.12), (E) any Junior Representative and the Junior Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Secured Parties, including any claims secured by the Junior Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Junior Enforcement Date, the Designated Junior Representative or any person authorized by it may exercise or seek to exercise any rights or remedies with respect to any Shared Collateral in respect of any Junior Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), in each case (A) through (F) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Designated Senior Representative, the other Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (Pathfinder Acquisition Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims First-Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent Borrower or any other Grantor, (i) no Second-Priority Agent Representative or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of any applicable Second-Priority Claims, Obligations or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First-Priority Collateral Agent or any Senior Lender First-Priority Secured Party in respect of the Senior Lender ClaimsFirst-Priority Obligations, the exercise of any right by the Intercreditor First-Priority Collateral Agent or any Senior Lender First-Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims First-Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Representative or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender First-Priority Documents or otherwise in respect of Senior Lender ClaimsFirst-Priority Obligations, or (z) object to the forbearance by the Senior Lenders First-Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims First-Priority Obligations and (ii) except as otherwise provided herein, the Intercreditor First-Priority Collateral Agent and the Senior Lenders First-Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment, and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Agent Representative or any Second-Priority Secured Party; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Parent Borrower or any other Grantor, each Second-Priority Agent Representative may file a claim or statement of interest with respect to the applicable Second-Priority Claims Obligations, in a manner and to the extent not inconsistent with the provisions hereof, and (B) each Second-Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender ClaimsFirst-Priority Obligations, or the rights of the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral. In exercising rights and remedies with respect to the Senior Lender First-Priority Collateral, the Intercreditor Agent and the Senior Lenders First-Priority Secured Parties may enforce the provisions of the Senior Lender First-Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code or other applicable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims First-Priority Obligations has not occurred, each Second-Priority AgentRepresentative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of the applicable Second-Priority ClaimsObligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims First-Priority Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents Representatives and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims Obligations pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims First-Priority Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority AgentRepresentative, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent Representative or any Second-Priority Secured Party will take any action that would hinder or delay any exercise of remedies undertaken by the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties with respect to the Common Collateral under the Senior Loan First-Priority Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority AgentRepresentative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties seek to enforce or collect the Senior Lender Claims First-Priority Obligations or the Liens granted in any of the Senior Lender First-Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor First-Priority Collateral Agent or Senior Lenders First-Priority Secured Parties is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor First-Priority Collateral Agent or the Senior Lenders First-Priority Secured Parties with respect to the Senior Lender First-Priority Collateral as set forth in this Agreement and the Senior Lender First-Priority Documents.

Appears in 1 contract

Sources: Credit Agreement (Canopy Growth Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, even if an event of default has occurred and remains uncured under the Junior Documents, and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or the Junior Trustee, the Junior Collateral Agent, and the Mortgage Tax Collateral Agent, to the extent of any Second-Priority Secured Party interest of the Junior Creditors, and the Junior Creditors will (x) not exercise or seek to exercise any rights or remedies as a secured creditor (including setoffset-off) with respect to any Common Collateral in respect on account of any applicable Second-Priority Junior Claims, institute any action or proceeding with respect to such rights the Common Collateral, or exercise any remedies against the Common Collateral (including any action of foreclosure), (y) or contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor Senior Trustee, Senior Collateral Agent, Mortgage Tax Collateral Agent or any Senior Lender Creditor in respect of the Senior Lender Claims, the any exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority the Junior Trustee, the Junior Collateral Agent, the Mortgage Tax Collateral Agent or any Second-Priority Secured Party either Junior Creditor is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such party, of any rights and remedies as a secured creditor relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by or on behalf of the Senior Lenders Creditors from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Claims, provided that notwithstanding anything to the contrary in this Section 3.1(a), the Mortgage Tax Collateral Agent shall not be restricted from exercising or seeking to exercise the rights and remedies of a secured creditor with respect to any Common Collateral in respect of Senior Claims, and (ii) except as otherwise provided hereinthe Senior Trustee, the Intercreditor Senior Collateral Agent, the Mortgage Tax Collateral Agent and the Senior Lenders Creditors shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the sale, release, disposition disposition, or restrictions with respect to the Common Collateral as a secured creditor without any consultation with or the consent of any Second-Priority the Junior Trustee, the Junior Collateral Agent or any Second-Priority Secured PartyJunior Creditor; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, the Company Junior Trustee, the Junior Collateral Agent or any other Grantor, each Second-Priority Agent Junior Creditor may file a claim or statement of interest with respect to the applicable Second-Priority Claims and Junior Claims, (B) each Second-Priority to the extent it would not prevent, restrict or otherwise limit any rights granted or created hereunder or under any Senior Collateral Documents in favor of the Senior Trustee, the Senior Collateral Agent or any other Senior Creditor in respect of the Common Collateral, the Junior Trustee, the Junior Collateral Agent or any Junior Creditor may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Claims in order to createpreserve, prove, perfect, preserve perfect or protect (but not enforce) its rights in, and perfection and priority of its Lien on, in the Common Collateral, (C) to the extent it would not prevent, restrict or otherwise limit any rights granted or created hereunder or under any Senior Collateral Documents in favor of the Senior Trustee, the Senior Collateral Agent, the Mortgage Tax Collateral Agent or any other Senior Creditor in respect of the Common Collateral, the Junior Trustee, the Junior Collateral Agent or any Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleadings made by any person objecting to or otherwise seeking the disallowance of the Junior Claims, including without limitation any claims secured by the Common Collateral, if any, in each case in accordance with the terms of this Agreement, or (D) the Junior Trustee, the Junior Collateral Agent or any Junior Creditor shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor Senior Trustee, the Senior Collateral Agent and the Senior Lenders Creditors may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to cause the Grantors to deliver a transfer document in lieu of foreclosure to the Senior Creditors or any nominee of the Senior Creditors, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a mortgagee in any applicable jurisdiction and a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. Upon the Discharge of Senior Claims, the Junior Trustee, the Junior Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of themselves and the Junior Creditors, will not be required to release their claims on any Common Collateral that has not been sold or otherwise disposed of in connection with the Discharge of Senior Claims. (b) So long as The Junior Trustee, the Discharge Junior Collateral Agent and the Mortgage Tax Collateral Agent (with respect to the Mortgage Tax Collateral Agent solely to the extent of Senior Lender Claims has not occurred, each Second-Priority Agent, any interest of the Junior Creditors in the Common Collateral) on behalf of itself themselves and the Junior Creditors, agree that solely as to the Common Collateral, they and each applicable Second-Priority Secured Party, agrees that it of them will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to the Common Collateral, receive any Common Collateral or Proceeds of any Common Collateral in respect of Junior Claims, or, upon or in any Insolvency or Liquidation Proceeding (except under any plan of reorganization approved by the applicable Second-Priority Senior Creditors or as provided in section 6.6) with respect to any Grantor as debtor, take or receive any Common Collateral or any Proceeds of Common Collateral in respect of Junior Claims, unless and until the Discharge of Senior Claims has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a)) or Section 6.3, the sole right of the Second-Priority Agents Junior Trustee, the Junior Collateral Agent and the Second-Priority Secured Parties Junior Creditors with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Junior Claims pursuant to the Second-Priority Documents, as applicable, Junior Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. In addition to the foregoing, the Junior Creditors hereby acknowledge that the Junior Indenture and the Junior Documents permit the Company and the other Grantors to repay, in certain circumstances, Senior Claims with Proceeds from the disposition of the Common Collateral prior to application to repay the Junior Claims, and agree that to the extent the Senior Documents require repayment of the Senior Claims with Proceeds from such dispositions, the Company shall pay such proceeds to the Senior Creditors as so required and each of the Junior Trustee, the Junior Collateral Agent and the Junior Creditors will not take or receive such Proceeds until after so applied. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority the Junior Trustee and the Junior Collateral Agent, for itself themselves and on behalf of each applicable Second-Priority Secured Partythe Junior Creditors, agrees agree that no Second-Priority the Junior Trustee, the Junior Collateral Agent or any Second-Priority Secured Party and the Junior Creditors will not take any action that would hinder any exercise of remedies undertaken by the Intercreditor Senior Trustee, the Senior Collateral Agent, the Mortgage Tax Collateral Agent or the Senior Lenders Creditors with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwiseotherwise and shall release any and all claims in respect of such Common Collateral (except for the right to receive the balance of Proceeds and to be secured by the Common Collateral after Discharge of Senior Claims as described in Section 4.1 and 5.1) so that it may be sold free and clear of the Liens of the Junior Creditors, the Junior Collateral Agent and of the Junior Trustee, on behalf of the Junior Creditors, and (ii) each Second-Priority the Junior Trustee and the Junior Collateral Agent, for itself themselves and on behalf of each applicable Second-Priority Secured Partyany such Junior Creditors, shall, within ten (10) Business Days of written request by the Senior Collateral Agent, the Senior Trustee or the Mortgage Tax Collateral Agent, execute and deliver to the Senior Collateral Agent such termination statements, releases and other documents as the Senior Collateral Agent, the Senior Trustee or the Mortgage Tax Collateral Agent may request to effectively confirm such release and the Junior Trustee and the Junior Collateral Agent, for themselves and on behalf of the Junior Creditors, hereby waives irrevocably constitute and appoint the Senior Trustee or the Senior Collateral Agent and any officer or agent of the Senior Trustee or the Senior Collateral Agent, with full power of substitution, as their true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Junior Trustee, the Junior Collateral Agent or such Junior Creditor or in the Senior Trustee’s or the Senior Collateral Agent’s own name, from time to time in the Senior Trustee’s or the Senior Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 3.1(c), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary to accomplish the purposes of this Section 3.1(c), including any termination statements, endorsements or other instruments of transfer or release. In exercising rights and remedies with respect to the Common Collateral, the Senior Trustee, the Senior Collateral Agent, the Mortgage Tax Collateral Agent and the Senior Creditor may enforce the provisions of the Senior Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to cause the Grantors to deliver a transfer document in lieu of foreclosure to the Senior Creditors or any nominee of the Senior Creditors, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a mortgagee in any applicable jurisdiction and a secured creditor under the Uniform Commercial Code or other laws of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. The Junior Trustee and the Junior Collateral Agent for themselves and on behalf of the Junior Creditors, hereby waive any and all rights it they or any Second-Priority Secured Party the Junior Creditors may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Senior Trustee, the Senior Collateral Agent, the Mortgage Tax Collateral Agent or the Senior Lenders Creditors seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Common Collateral in respect of Senior Lender CollateralClaims, regardless of whether any action or failure to act by or on behalf of the Intercreditor Senior Trustee, the Senior Collateral Agent, the Mortgage Tax Collateral Agent or Senior Lenders Creditors is adverse to the interests interest of the Second-Priority Secured PartiesJunior Creditors. The Junior Trustee and the Junior Collateral Agent, for themselves and on behalf of the Junior Creditors, waive the right to commence any legal action or assert in any legal action or in any Insolvency or Liquidation Proceeding any claim against the Mortgage Tax Collateral Agent and/or Senior Creditors seeking damages from the Mortgage Tax Collateral Agent or the Senior Creditors or other relief, by way of specific performance, injunction or otherwise, with respect to any action taken or omitted by the Mortgage Tax Collateral Agent or the Senior Creditors as permitted by this Agreement. (d) Each Second-Priority The Junior Trustee and the Junior Collateral Agent hereby acknowledges acknowledge and agrees agree that no covenant, agreement or restriction contained in any applicable Second-Priority Junior Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Senior Trustee, the Senior Collateral Agent, the Mortgage Tax Collateral Agent or the Senior Lenders Creditors with respect to the Senior Lender Common Collateral as set forth in this Agreement and the Senior Lender Documents, to the extent consistent with this Agreement.

Appears in 1 contract

Sources: Intercreditor Agreement (Hovnanian Enterprises Inc)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, even if an event of default has occurred and remains uncured under the Noteholder Collateral Documents, and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Priority Agent or any Second-Priority Secured Party the Trustee, the Noteholder Collateral Agent, and the Noteholders will (x) not exercise or seek to exercise any rights or remedies as a secured creditor (including setoffset-off) with respect to any Common Collateral in respect on account of any applicable Second-Priority Noteholder Claims, institute any action or proceeding with respect to such rights the Common Collateral, or exercise any remedies against the Common Collateral (including any action of foreclosure), (y) or contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First-Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the any exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent the Trustee, the Noteholder Collateral Agent, or any Second-Priority Secured Party either Noteholder is a party or may have rights as a third party beneficiaryparty, or any other exercise by any such party, of any rights and remedies as a secured creditor relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by or on behalf of the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims Claims, and (ii) except as otherwise provided herein, the Intercreditor First-Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff set-off and the right to credit bid their debt) and make determinations regarding the sale, release, disposition disposition, or restrictions with respect to the Common Collateral as a secured creditor without any consultation with or the consent of any Second-Priority the Trustee, the Noteholder Collateral Agent or any Second-Priority Secured PartyNoteholder; provided, however, provided that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, the Company Trustee or any other Grantor, each Second-Priority Agent Noteholder may file a claim or statement of interest or proof of claim with respect to the applicable Second-Priority Claims and Noteholder Claims, (B) each Secondto the extent it (i) would not prevent, restrict or otherwise limit any rights granted or created hereunder or under any Senior Lender Collateral Documents in favor of the First-Priority Lien Agent or any other Senior Lender in respect of the Common Collateral or (ii) is not otherwise inconsistent with the terms of this Agreement, the Trustee or any Noteholder may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) Claims in order to createpreserve, prove, perfect, preserve perfect or protect (but not enforce) its rights in, the validity and perfection and priority enforceability of its Lien on, Liens in the Common Collateral, (C) to the extent it would not prevent, restrict or otherwise limit any rights granted or created hereunder or under any Senior Lender Collateral Documents in favor of the First-Lien Agent or any other Senior Lender in respect of the Common Collateral, the Trustee or any Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleadings made by any person objecting to or otherwise seeking the disallowance of the Noteholder Claims, including without limitation any claims secured by the Common Collateral, if any, in each case in accordance with the terms of this Agreement, or (D) the Trustee or any Noteholder shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Common Collateral, the Intercreditor First-Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to cause the Grantors to deliver a transfer document in lieu of foreclosure to the Senior Lenders or any nominee of the Senior Lenders, to incur reasonable expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a mortgagee in any applicable jurisdiction and a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as . Upon the Discharge of Senior Lender Claims has not occurredClaims, each Second-Priority the Trustee, and the Noteholder Collateral Agent, on behalf of itself themselves and each applicable Second-Priority Secured Partythe Noteholders, agrees that it will not, in the context of its role as secured creditor, take or receive not be required to release their claims on any Common Collateral that has not been sold or any proceeds otherwise disposed of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurredClaims. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Indenture (Century California, LLC)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-neither any Second Priority Agent Representative nor any Second Priority Debt Party will (w) file or commence any Insolvency or Liquidation Proceeding against the Company or any Second-Priority Secured Party will other Grantor, (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, institute or otherwise commence, or join with any Person (other than the Senior Secured Parties and the Senior Representatives upon the request of the Designated Senior Representative) in commencing, any action or proceeding with respect to such rights or remedies (including any enforcement, collection, execution, levy or foreclosure action or proceeding under any of foreclosurethe Second Priority Debt Documents with respect to the Shared Collateral), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided hereinuntil the Discharge of Senior Obligations, the Intercreditor Agent and Designated Senior Representative on behalf of the Controlling Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff or recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral or any other Senior Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-any Second Priority Agent Representative may (I) file a claim, proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims Debt Obligations under its Second Priority Debt Facility, and (II) exercise rights with respect to adequate protection to the extent expressly provided in Section 6.03, in each case in a manner that does not frustrate the purpose of or violate the terms or conditions of this Agreement, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, to the extent provided and subject to the restrictions contained in Section 5.04, (D) the Second Priority Debt Parties may file any necessary and appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Debt Parties or the avoidance of any Second Priority Lien, to the extent such pleadings do not frustrate the purpose of or violate the Lien priorities described in Article II, or other provisions of this Agreement, (E) any Second Priority Debt Party may (subject to the provisions of Section 6.11(b)) vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement or restructuring proposed in or in connection with any Insolvency or Liquidation Proceeding that conforms to the terms and conditions of this Agreement (including Section 6.11(b)) in a manner that does not frustrate the purpose of or violate the terms or conditions of this Agreement (including Section 6.11(b)), with respect and the Shared Collateral, (F) any Second Priority Debt Party may credit bid in any sale or other disposition of the Shared Collateral to the extent expressly provided in Section 6.05 (in each case of clauses (A) through (F) above, solely to the extent such action (1) does not frustrate the purpose of or violate any other provision of this Agreement and does not frustrate the purpose of or violate the Lien priorities set forth in this Agreement, and (2) until the Discharge or Refinancing of the Initial First Lien Inventory Financing Obligations has occurred, does not frustrate the purpose of or violate the terms or conditions of this the First Lien Inventory Financing Agreement unless otherwise expressly consented to in writing by the Ally Parties), and (G) after the Discharge of Senior Obligations, the Second Priority Representative (or a person authorized by it) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure). In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunderthereunder consistent with this Agreement, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code or any other applicable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Transaction Support Agreement (Carvana Co.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)) with respect to any Common Collateral, (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, management agreement, lease, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, Claims or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral and to direct the time, method, and place for exercising such right or remedy or conducting any proceeding with respect thereto, without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) any Second Priority Agent and the Second Priority Secured Parties represented by it may exercise any or all such rights after the passage of a period of 180 days from the occurrence of both (i) an Event of Default (under and as defined in the applicable Second Priority Documents) and (ii) the date of delivery of a notice in writing to each First Lien Agent of such Second Priority Agent’s or Second Priority Secured Party’s intention to exercise its right to take such actions which notice shall specify that an “Event of Default” as defined in the applicable Second Priority Documents has occurred and as a result of such “Event of Default”, the principal and interest under such Second Priority Documents have become due and payable (the “Second Priority Standstill Period”) unless (i) a First Lien Agent has commenced and is diligently pursuing remedies with respect to any material portion of the Common Collateral (or such attempt is stayed by an Insolvency or Liquidation Proceeding), (ii) the Grantor that has granted a security interest in such Common Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding or (iii) the acceleration of the applicable Second Priority Claims is rescinded in accordance with the terms of the applicable Second Priority Documents and (B) (1) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and Claims, (B2) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders to exercise remedies in respect thereof) as necessary in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral, (3) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Second Priority Agent may file any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Second Priority Agent or Second Priority Secured Party, (4) each Second Priority Agent may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Borrower or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law and (5) each Second Priority Agent and each Second Priority Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor, in each case (B)(1) through (5) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Agents and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Credit Agreement (CAESARS ENTERTAINMENT Corp)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, (i) no Second-neither any Second Priority Agent or Representative nor any Second-Second Priority Secured Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of any applicable Second-Second Priority ClaimsDebt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Shared Collateral or any other Senior Collateral by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party in respect of the Senior Lender ClaimsObligations, the exercise of any right by the Intercreditor Agent any Senior Representative or any Senior Lender Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent Senior Representative or any Second-Priority Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, party of any rights and remedies relating to the Common Shared Collateral under the Senior Lender Debt Documents or otherwise in respect of the Senior Lender ClaimsCollateral or the Senior Obligations, or (z) object to the forbearance by the Senior Lenders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Shared Collateral in respect of Senior Lender Claims Obligations and (ii) except as otherwise provided herein, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Shared Collateral without any consultation with or the consent of any Second-Second Priority Agent Representative or any Second-Second Priority Secured Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company Borrower or any other Grantor, each Second-any Second Priority Agent Representative may file a claim claim, proof of claim, or statement of interest with respect to the applicable Second-Second Priority Claims and Debt Obligations under its Second Priority Debt Facility, (B) each Second-any Second Priority Agent Representative may take any action (not adverse to the prior Liens on the Common Shared Collateral securing the Senior Lender Claims, Obligations or the rights of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Shared Collateral, (C) any Second Priority Representative and the Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, and (D) from and after the Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies; provided, that any such action taken pursuant to any of such clauses (A) through (D) hereof must in each case be in accordance and otherwise consistent with the terms of this Agreement. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor Agent Senior Representatives and the Senior Lenders Secured Parties may enforce the provisions of the Senior Lender Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims Obligations has not occurred, each Second-Second Priority AgentRepresentative, on behalf of itself and each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Shared Collateral or any proceeds Proceeds of Common Shared Collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Shared Collateral in respect of the applicable Second-Second Priority ClaimsDebt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a3.01(a), the sole right of the Second-Second Priority Agents Representatives and the Second-Second Priority Secured Debt Parties with respect to the Common Shared Collateral is to hold a Lien on the Common Shared Collateral in respect of the applicable Second-Second Priority Claims Debt Obligations pursuant to the Second-Second Priority Documents, as applicable, Debt Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after the Discharge of Senior Lender Claims Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a3.01(a), (i) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, agrees that no Second-neither such Second Priority Agent or Representative nor any Second-such Second Priority Secured Debt Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent any Senior Representative or the any Senior Lenders Secured Party with respect to the Common Shared Collateral under the Senior Loan Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Common Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority AgentRepresentative, for itself and on behalf of each applicable Second-Second Priority Secured PartyDebt Party under its Second Priority Debt Facility, hereby waives any and all rights it or any Second-such Second Priority Secured Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties seek to enforce or collect the Senior Lender Claims Obligations or the Liens granted in on any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor Agent any Senior Representative or any other Senior Lenders Secured Party is adverse to the interests of the Second-Second Priority Secured Debt Parties. (d) Each Second-Second Priority Agent Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Senior Representatives or the Senior Lenders Secured Parties with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Debt Documents. (e) Until the Discharge of Senior Obligations, the Designated Senior Representative shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of Senior Obligations, the Second Priority Instructing Group and the Designated Second Priority Representative shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Second Priority Instructing Group and Designated Second Priority Representative shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second Priority Debt Obligations.

Appears in 1 contract

Sources: Credit Agreement (Life Time Group Holdings, Inc.)

Exercise of Remedies. (a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) no Second-Second Priority Agent or any Second-Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoffsetoff or recoupment) with respect to any Common Collateral or any other security in respect of any applicable Second-Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral or any other collateral by the Intercreditor any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by the Intercreditor any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Second Priority Agent or any Second-Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral or any other collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims, or (z) object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral or any other collateral in respect of Senior Lender Claims and (ii) except as otherwise provided herein, the Intercreditor each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Second Priority Agent or any Second-Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Second-Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable Second-Second Priority Claims and (B) each Second-Second Priority Agent may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor either First Lien Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common CollateralCollateral and (C) each Second Priority Agent may file any pleadings, objections, motions or agreements which assert rights available to unsecured creditors of the Company or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor each First Lien Agent and the Senior Lenders may enforce the provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code uniform commercial code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Second Priority Agent, on behalf of itself and each applicable Second-Second Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, not take or receive any Common Collateral or other collateral or any proceeds of Common Collateral or other collateral in connection with the exercise of any right or remedy (including setoffsetoff or recoupment) with respect to any Common Collateral or other collateral in respect of the applicable Second-Second Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Second Priority Agents and the Second-Second Priority Secured Parties with respect to the Common Collateral or any other collateral is to hold a Lien on the Common Collateral or such other collateral in respect of the applicable Second-Second Priority Claims pursuant to the Second-Second Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior Lender Claims has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a)) above, (i) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, agrees that no Second-Second Priority Agent or any Second-Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Common Collateral or any other collateral under the Senior Loan Lender Documents, including any sale, lease, exchange, transfer or other disposition of the Common CollateralCollateral or such other collateral, whether by foreclosure or otherwise, and (ii) each Second-Second Priority Agent, for itself and on behalf of each applicable Second-Second Priority Secured Party, hereby waives any and all rights it or any Second-Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor any First Lien Agent or the Senior Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the Senior Lender Collateral, regardless of whether any action or failure to act by or on behalf of the Intercreditor any First Lien Agent or Senior Lenders is adverse to the interests of the Second-Second Priority Secured Parties. (d) Each Second-Second Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Second Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor any First Lien Agent or the Senior Lenders with respect to the Senior Lender Collateral as set forth in this Agreement and the Senior Lender Documents.

Appears in 1 contract

Sources: Intercreditor Agreement (Claires Stores Inc)

Exercise of Remedies. (a) So long as Prior to the Discharge of Senior First Lien Lender Claims has not occurredTermination Date, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorObligor, (i) no Second-Priority the Second Lien Agent or any Second-Priority Secured Party and the other Noteholders will not (xA) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority ClaimsCollateral, or institute any action or proceeding with respect to such rights or remedies (including remedies, including, without limitation, any action of foreclosure), (yB) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the Intercreditor First Lien Agent or any Senior Lender in respect of the Senior Lender Claimsother First Lien Lender, the or any exercise of any right by the Intercreditor Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control cash management agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Agent or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior First Lien Lender Documents or otherwise in respect of Senior Lender Claimsotherwise, or (zC) object to the forbearance by the Senior First Lien Agent and the other First Lien Lenders or any of them from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Collateral. Prior to the First Lien Lender Claims and (ii) except as otherwise provided hereinTermination Date, the Intercreditor First Lien Agent and the Senior other First Lien Lenders shall have the exclusive right to enforce rights, exercise remedies (including including, without limitation, setoff and the right to credit bid their debt) and make determinations regarding the release, disposition disposition, or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority the Second Lien Agent or any Second-Priority Secured Partyother Noteholder; provided, however, provided that (Ai) in any Insolvency or Liquidation Proceeding commenced by or against any Obligor, the Company or any other Grantor, each Second-Priority Second Lien Agent may file a proof of claim or statement of interest with respect to the applicable Second-Priority Claims Noteholder Debt, (ii) the Second Lien Agent may (x) send such notices of the existence of, or any evidence or confirmation of, the Noteholder Debt under the Noteholder Documents or the Liens of the Second Lien Agent, or any other collateral agent, agent or representative of the Noteholders which has appointed the Second Lien Agent to act for, and bind, it (and all Noteholders for which it acts as collateral agent, agent or representative) under and for purposes of this Agreement, in the Collateral to any court or governmental agency or (y) file or record any such notice or evidence to the extent necessary to prove or preserve the Liens of the Second Lien Agent, or any other collateral agent, agent or representative of the Noteholders which has appointed the Second Lien Agent to act for, and bind, it (and all Noteholders for which it acts as collateral agent, agent or representative) under and for purposes of this Agreement, in the Collateral, (iii) the Second Lien Agent may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of any Noteholder, including any claims secured by the Collateral, in each case to the extent not inconsistent with the terms of this Agreement, and (Biv) each Second-Priority the Second Lien Agent or any other collateral agent, agent or representative of the Noteholders which has appointed the Second Lien Agent to act for, and bind, it (and all Noteholders for which it acts as collateral agent, agent or representative) under and for purposes of this Agreement, may take any action (not adverse to the prior Liens on the Common Collateral securing the Senior Lender Claims, or the rights of the Intercreditor Agent or the Senior Lenders to exercise remedies in respect thereof) in order to create, prove, perfect, perfect or preserve or protect (but not enforce) its rights inLien on any Collateral. The Second Lien Agent, for and perfection on behalf of the Noteholders, agrees that, unless and priority until the First Lien Lender Termination Date has occurred: the Second Lien Agent and the other Noteholders will not commence, or join with any Person (other than the First Lien Agent and/or the other First Lien Lenders upon the request thereof) in commencing any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it under any of its the Noteholder Documents or otherwise; and the Second Lien onAgent and the other Noteholders will not take any action that would hinder any exercise of remedies undertaken by the First Lien Agent or any other First Lien Lender under any of the First Lien Lender Documents, the Common including any sale, lease, exchange, transfer, or other disposition of any Collateral, whether by foreclosure or otherwise. In exercising rights and remedies with respect to the Senior Lender Collateral, the Intercreditor First Lien Agent and the Senior other First Lien Lenders or any of them may enforce the provisions of the Senior First Lien Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include include, without limitation, the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender party under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws Code or similar laws of any applicable jurisdiction. (b) So long as the Discharge of Senior Lender Claims has not occurred, each Second-Priority Agent, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not, in the context of its role as secured creditor, take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Claims. Without limiting the generality of the foregoing, unless and until the Discharge of Senior First Lien Lender Claims Termination Date has occurred, except as expressly provided above in this Section 3.1(a) or the proviso in clause (ii) of Section 3.1(a3.1(b), the sole right of the Second-Priority Agents Second Lien Agent and the Second-Priority Secured Parties other Noteholders with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Claims pursuant to the Second-Priority Documents, as applicable, Noteholder Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Senior First Lien Lender Claims Termination Date has occurred. (cb) Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority The Second Lien Agent, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Agent or any Second-Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by the Intercreditor Agent or the Senior Lenders with respect to the Common Collateral under the Senior Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Agent, for itself and on behalf of each applicable Second-Priority Secured PartyNoteholders, hereby waives any and all rights it or any Second-Priority Secured Party other Noteholder may have as a junior lien creditor or otherwise to object to the manner in which the Intercreditor First Lien Agent or the Senior Lenders any other First Lien Lender seek to enforce or collect the Senior Lender Claims any First Lien Debt or the any Liens granted in any of the Senior Collateral; provided that, notwithstanding any other provision of this Agreement (including Section 3(a) above), but subject at all times to the provisions of Section 4 of this Agreement, the Second Lien Agent may enforce or exercise any or all such rights and remedies, or commence, petition or file for any such action or proceeding, (i) after a period ending one hundred eighty (180) days after the date that the First Lien Agent receives written notice from the Second Lien Agent that Second Lien Agent has declared, in writing, the existence of any event of default under any of the Noteholder Documents and has accelerated the payment of all the principal amount of the Noteholder Debt and has demanded, in writing, the repayment of such Noteholder Debt from the Obligors, and (ii) if and only if, as of the expiration of such one hundred eighty (180) day period, (A) the applicable event of default set forth in the written notice set forth in Section 3.1(b)(i) above is continuing and has not been cured, waived or remedied, and (B) the First Lien Agent or any other First Lien Lender is not then diligently pursuing in good faith the exercise of its enforcement rights or remedies against a material portion of the Collateral (including, without limitation, any of the following: solicitation of bids from third parties to conduct the liquidation of all or any material portion of the Collateral, regardless the engagement or retention of whether sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promotion or selling all or any material portion of the Collateral, the notification of account debtors to make payments to the First Lien Agent, the initiation of any action to take possession of all or failure to act by or on behalf any material portion of the Intercreditor Agent or Senior Lenders is adverse to the interests of the Second-Priority Secured Parties. (d) Each Second-Priority Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the Intercreditor Agent Collateral or the Senior Lenders commencement of any legal proceedings or actions against or with respect to all or any material portion of the Senior Lender Collateral as set forth in this Agreement and the Senior Lender DocumentsCollateral).

Appears in 1 contract

Sources: Credit Agreement (Gencorp Inc)