Exercise of Remedies. (a) 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders: (1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); (2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and (3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2. (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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may: (1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor; (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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and (4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred. (d) Subject to Sections 3.1(c) and Section 6.3(b): (1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise; (2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and (3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents. (e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement. (f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 2 contracts
Sources: First and Subordinated Lien Intercreditor Agreement (CVR Energy Inc), Credit and Guaranty Agreement (CVR Energy Inc)
Exercise of Remedies. (a) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany, the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated Junior Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Collateral Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that any one or more of the Junior Lien Representative and the Junior Lien Collateral (including the Agent may, in accordance with any relevant Junior Lien Security Document, but is not required to, commence a Collateral Enforcement Action or otherwise exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (including i) the date on which a Junior Lien Representative declared the existence of any action Event of foreclosureDefault under (and as defined in) any Junior Lien Documents and demanded the repayment of all the principal amount of any Junior Lien Obligations thereunder; and (ii) the date on which the Senior Lien Representatives received notice from such Junior Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Junior Lien Representative, any Junior Lien Collateral Agent or any Junior Lien Claimholder exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, any Senior Lien Representative, any Senior Lien Collateral Agent or any applicable Senior Lien Claimholder(s) shall have commenced and is pursuing a Collateral Enforcement Action or other exercise of its or their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt written notice of such exercise to be given to the Junior Lien Representative);
(2) will not contest, protest or object to (i) any foreclosure proceeding or action brought by the First any Senior Lien Representative, any Senior Lien Collateral Agent or any First Senior Lien Claimholder or (ii) any other exercise by the First any Senior Lien Representative, any Senior Lien Collateral Agent or any First Senior Lien Claimholder of any rights and remedies relating to the Collateral under the First Senior Lien Documents or otherwiseotherwise (including any Collateral Enforcement Action initiated by or supported by any Senior Lien Representative, any Senior Lien Collateral Agent or any Senior Lien Claimholder); and
(3) subject to their rights under clause (a)(1) above, above will not object to the forbearance by the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any Senior Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any Senior Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of Senior Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 25.1 hereof and applicable law.
(b) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany, subject to Section 4.1(a)(1), the First Senior Lien Representatives, the Senior Lien Collateral Agent Agents and the First Senior Lien Claimholders shall have the exclusive right to (i) commence and maintain a Collateral Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt, except that Junior Lien Representatives shall have the credit bid rights set forth in Section 4.1(c)(6)), and (ii) and, subject to Section 5.15.3, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholder; provided that, the in each case, any proceeds received by any Senior Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of Senior Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 25.1 hereof and applicable law. In commencing or maintaining any Collateral Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Senior Lien Representatives, Senior Lien Collateral Agent Agents and the First Senior Lien Claimholders may enforce the provisions of the First Senior Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion in compliance with any applicable law and without consultation with any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Junior Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws Law of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent, in accordance with any relevant Junior Lien Security Document, and any Subordinated other Junior Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Junior Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Senior Lien Obligations, or the rights of any First Senior Lien Representative, any Senior Lien Collateral Agent or the First Senior Lien Claimholders to exercise 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 Subordinated Junior Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Junior Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder, may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 4.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any Senior Lien Representative, any Senior Lien Collateral Agent or any other Senior Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Junior Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of Senior Lien Obligations. The Subordinated Each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Junior Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Senior Lien Obligations has occurred, except in connection with any foreclosure that is expressly permitted by Section 4.1(a)(1) to pursue after the expiration of the Standstill Period to the extent such Junior Lien Representative or such Junior Lien Collateral Agent and Junior Lien Claimholders represented by it are permitted to retain the proceeds thereof in accordance with Section 5.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Senior Lien Obligations has occurred, except as expressly provided in Sections 3.1(a4.1(a), 6.3(b) and this Section 3.1(c4.1(c), the sole right of the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Junior 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 First Senior Lien Obligations has occurred.
(d) Subject to Sections 3.1(c4.1(a) and (c) and Section 6.3(b):
(1) the Subordinated each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Junior Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Junior Lien Representative or such Junior Lien Collateral Trustee Agent and the Subordinated such Junior Lien Claimholders represented by it will not take any action that would hinder any exercise of remedies under the First Senior Lien Documents or that is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Junior Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Junior Lien Representative or the Subordinated such Junior Lien Collateral Agent and such Junior Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders seek Claimholder seeks to enforce or collect the First Senior Lien Obligations or the Liens securing the First Senior Lien Obligations granted in any of the First Senior Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First any Senior Lien Representative, any Senior Lien Collateral Agent or First any other Senior Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Junior Lien ClaimholdersClaimholder; and
(3) the Subordinated each Junior Lien Representative and each Junior Lien Collateral Trustee Agent, for itself and on behalf of each other Junior Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Junior Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Senior Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) this Agreement, Article II of the Initial Junior Lien Indenture and (d)the Note Subordination Agreement, the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior 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 Subordinated Junior Lien Obligations in accordance with the terms of the Subordinated Junior Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to the Company); provided that in the event that any Subordinated Junior 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 Subordinated Junior Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Senior Lien Obligations) in the same manner as the other Liens securing the Subordinated Junior Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a4.1(a) and (d), and without limiting Article II of the Initial Junior Lien Indenture or the Note Subordination Agreement, nothing in this Agreement shall prohibit the receipt by the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Junior Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Junior Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First other Senior Lien Claimholders Claimholder may have with respect to the First Senior Lien Collateral.
Appears in 2 contracts
Sources: Indenture Agreement (Centrus Energy Corp), Indenture Agreement (United States Enrichment Corp)
Exercise of Remedies. (a) 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 Borrower or any other Grantor, the Subordinated Collateral Trustee Second Lien Representatives and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise commence or maintain, or seek to commence or maintain (or join any other Person in commencing or maintaining), any Enforcement Action or otherwise exercise any rights or remedies (including setoff, recoupment, and the right to credit bid debt, if any) against Collateral; provided that the Designated Second Lien Representative may commence an Enforcement Action after the passage of a period of at least 150 days has elapsed since the later of (i) the date on which a Second Lien Representative declared the existence of any “Event of Default” under (and as defined in) any Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that such 150 days Standstill Period shall be tolled at any time when the First Lien Representative or the applicable First Lien Secured Parties (i) have commenced and are diligently pursuing in good faith an Enforcement Action against all or any material portion of the Collateral or (ii) are stayed from exercising remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)Collateral;
(2) will not contest, protest or object to (or support any other Person contesting, protesting or objecting) any foreclosure or enforcement proceeding or action brought by the any First Lien Collateral Agent Representative or any First Lien Claimholder Secured Party or any other exercise by the any First Lien Collateral Agent Representative or any First Lien Claimholder Secured Party of any rights and remedies relating to against the Collateral under the First Lien Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above, above will not object to the forbearance by the any First Lien Collateral Agent Representative or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to against the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1.
(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 Borrower or any other Grantor, subject to Section 3.1(a)(1), the First Lien Collateral Agent Representatives and the First Lien Claimholders Secured Parties shall have the exclusive right to enforce rightscommence and maintain an Enforcement Action, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to of the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second Lien Representative or any Subordinated other Second Lien ClaimholderSecured Party; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 hereof. In exercising rights and remedies with respect to the Collateralcommencing or maintaining any Enforcement Action, the First Lien Collateral Agent Representatives and the First Lien Claimholders Secured Parties may enforce the provisions of the First Lien Documents and exercise remedies thereunder, thereunder all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee any Second Lien Representative and any Subordinated Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor;
(2) take any action (not in breach of any term of this Agreement and 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 Representative or the First Lien Claimholders Secured Parties to exercise 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 of, or treatment of, the claims of the Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case not in accordance with the terms breach of any term of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that are, in each case, not in accordance with the terms breach of any term of this Agreement, with respect to the Subordinated Second Lien Obligations, the Liens securing the Second Lien Obligations and the Collateral; provided that no such vote, filing of any claim, other filings or arguments shall be in breach of any term of this Agreement;
(5) exercise any of its rights or remedies against the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
(7) join (but not exercise any control with respect to) any judicial foreclosure proceeding, other judicial lien enforcement proceeding or motion to lift the automatic stay with respect to the Collateral initiated by the First Lien Representative or any other First Lien Secured Party to the extent that any such action would not restrain, hinder, limit, delay or otherwise interfere (in each case, as reasonably determined by the Designated First Lien Representative) with the exercise of remedies by the Designated First Lien Representative or such other First Lien Secured Party (it being understood that neither the Designated Second Lien Representative nor any other Second Lien Secured Party shall be entitled to receive any proceeds thereof unless otherwise permitted herein);
(8) take any action, and file any pleading or document, in each case, that is necessary to prevent the running of any statute of limitations with respect to any claim or cause of action related to the Second Lien Obligations or the Liens securing the Second Lien Obligations;
(9) exercise all rights to obtain information concerning the Grantor, the Collateral or the Liens securing the Second Lien Obligations; or
(10) take any action, and exercise any and all rights provided for under this Agreement. The Subordinated Collateral TrusteeEach Second Lien Representative, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to against any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative and Second Lien Secured Parties represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee Second Lien Representatives and the Subordinated other Second Lien Claimholders with respect to Secured Parties against the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a), (b), (c) and Section 6.3(b):6:
(1) the Subordinated Collateral Trusteeeach Second Lien Representative, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, agrees that the Subordinated Collateral Trustee such Second Lien Representative and the Subordinated such Second Lien Claimholders Secured Parties represented by it will not take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies under the First Lien Documents against the Collateral or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trusteeeach Second Lien Representative, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, hereby waives any and all rights such Second Lien Representative or such Second Lien Secured Parties represented by it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise (whether arising under the UCC, any Bankruptcy Law or any other applicable law) to object to the manner in which the any First Lien Collateral Agent Representative or the other First Lien Claimholders seek Secured Party seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementAgreement and applicable law, regardless of whether any action or failure to act by or on behalf of the any First Lien Collateral Agent Representative or other First Lien Claimholders Secured Party is adverse to the interest of the Subordinated any Second Lien ClaimholdersSecured Party; and
(3) each Second Lien Representative, for itself and on behalf of the Subordinated Collateral Trustee Second Lien Secured Parties represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Collateral Agent Representative or the any other First Lien Claimholders Secured Party with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth would be in Sections 3.1(a) and (d)breach of the express terms of this Agreement, the Subordinated Collateral Trustee Second Lien Representatives and the Subordinated other Second Lien Claimholders Secured Parties may exercise any and all rights and remedies as unsecured creditors against the Company Borrower or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 2 contracts
Sources: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)
Exercise of Remedies. (a) Until the Discharge of First Lien Senior Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company or any other GrantorObligors, each of the Subordinated Junior Collateral Trustee Agents, for itself and the Subordinated Lien on behalf of its Related Claimholders, hereby agrees that it and its Related Claimholders:
(1) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Collateral (including the exercise of in which a Junior Claimholder has a Junior Lien or institute or commence, or join with any right of setoff Person in instituting or commencing, any other Enforcement Action or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any other 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); provided that the Directing Junior Collateral Agent may (as between the Term Loan Collateral Agents, subject to the First Lien/Second Lien Intercreditor Agreement) commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days since the Directing Senior Collateral Agent shall have received notice from the Directing Junior Collateral Agent with respect to the acceleration by the relevant Junior Claimholders of the maturity of all then outstanding Junior Obligations (and requesting that Enforcement Action be taken with respect to the Collateral in which a Junior Claimholder has a Junior Lien) so long as the applicable “event of default” shall not have been cured or waived (or the applicable acceleration rescinded) (the “Standstill Period”); provided, further that notwithstanding anything herein to the contrary, in no event shall the Junior Collateral Agents or any other Junior Claimholders exercise any rights or remedies with respect to any Collateral in which a Junior Claimholder has a Junior Lien or institute or commence, or join with any Person in instituting or commencing, any other Enforcement Action with respect to such Collateral or any other action or proceeding with respect to such rights or remedies, if, notwithstanding the expiration of the Standstill Period, either (A) the Directing Senior Collateral Agent or any other Senior Claimholder shall have commenced and be diligently pursuing (or shall have sought or requested and be diligently pursuing relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and the pursuit of) an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of such Collateral (with any determination of which such Collateral to proceed against, and in what order, to be made by the Directing Senior Collateral Agent or such Senior Claimholders in their reasonable judgment) or (B) any of the Obligors is then a debtor in any Insolvency or Liquidation Proceeding;
(2) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the First Lien Senior Collateral Agent or any First Lien other Senior Claimholder or any other exercise by the First Lien Senior Collateral Agent or any First Lien other Senior Claimholder of any rights and remedies relating to the Collateral in which a Senior Claimholder has a Senior Lien under the First Lien Senior Documents or otherwise; and;
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Senior Collateral Agent or the First Lien other Senior Claimholders from bringing or pursuing any foreclosure proceeding or action Enforcement Action or any other exercise of any rights or remedies relating to the Collateralany Collateral in which a Senior Claimholder has a Senior Lien, in each case so long as any proceeds received by the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 Senior Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed in excess of subject those necessary to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions achieve a Discharge of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case Senior Obligations are distributed in accordance with the terms of this AgreementSection 4.1; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral in which a Senior Claimholder has a Senior Lien, or any proceeds of Collateral or payment with respect to any such Collateral, in connection with the any Enforcement Action or any other exercise of any right or remedy with respect to any such Collateral or any Insolvency or Liquidation Proceeding in its capacity as a creditor or in connection with any insurance policy award or any award in a condemnation or similar proceeding (including set-off and recoupmentor deed in lieu of condemnation) with respect to any Collateral such Collateral, in its capacity as a creditor, each case unless and until the Discharge of First Lien Senior Obligations has occurred, except, (x) as between the First Lien Credit Agreement Collateral Agent and the Second Lien Notes Collateral Agent, as expressly permitted by the First Lien/Second Lien Intercreditor Agreement and (y) in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Junior Collateral Agent and its Related Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.1. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Senior Obligations has occurred, except as expressly provided in Sections 3.1(a3.1(a)(1), 6.3(b3.1(c) and this Section 3.1(c6.3(b), the sole right of the Subordinated each Junior Collateral Trustee Agent and the Subordinated Lien other Junior Claimholders with respect to any Collateral in which a Junior Claimholder has a Junior Lien (other than inspection, monitoring, reporting and similar rights provided for in the Collateral Junior Financing Documents) is to hold a Lien on the such Collateral pursuant to the Subordinated Lien Junior 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 First Lien Senior Obligations has occurred. For the avoidance of doubt, nothing contained in this Agreement shall prohibit (i) the exercise of rights by the ABL Credit Agreement Collateral Agent during a Dominion Period (as defined in the ABL Credit Agreement), including the notification of depository institutions or any other person to deliver proceeds of ABL Priority Collateral to the ABL Credit Agreement Collateral Agent, (ii) the reduction of advance rates or sub-limits by the ABL Credit Agreement Collateral Agent or (iii) the imposition of any Reserve (as defined in the ABL Credit Agreement) by the ABL Credit Agreement Collateral Agent.
(b) Until the Discharge of Senior Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Obligor, subject to Sections 3.1(a)(1), 3.1(c) and 6.3(b), the Senior Collateral Agents and the other Senior Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise exercise any rights and remedies with respect to the Collateral in which a Senior Claimholder has a Senior Lien (including set-off, recoupment and the right to “credit bid” their debt, except that the Junior Collateral Agents shall have the “credit bid” rights set forth in Section 3.1(c)(6)), and make determinations regarding the release or Disposition of, or restrictions with respect to, such Collateral in connection with any such Enforcement Action or other exercise of rights and remedies with respect to such Collateral, in each case without any consultation with or the consent of any Junior Collateral Agent or any other Junior Claimholder; provided that any proceeds received by any Senior Collateral Agent on account of such Collateral in excess of those necessary to achieve a Discharge of Senior Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to any Collateral in which a Senior Claimholder has a Senior Lien, the Senior Collateral Agents and the other Senior Claimholders may enforce the provisions of the Senior Documents and exercise rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with any Junior Collateral Agent or any other Junior Claimholder and regardless of whether any such exercise is adverse to the interest of any Junior Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by the Senior Claimholders to sell or otherwise Dispose of Collateral in which a Senior Claimholder has a Senior Lien upon foreclosure, to incur expenses in connection with such sale or other Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, each Junior Collateral Agent and any other Junior Claimholder may:
(1) file a claim, proof of claim or statement of interest with respect to the Junior Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any of the Obligors;
(2) take any action in order to create, perfect, preserve or protect (but not enforce) its Lien on the Collateral in which a Junior Claimholder has a Junior Lien to the extent (A) not adverse to the priority status of the Liens on such Collateral securing the Senior Obligations, or the rights of any Senior Collateral Agent or the other Senior Claimholders to exercise rights and remedies in respect thereof, and (B) not otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 5.1;
(3) 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 of the Junior Claimholders, including any claims or Liens secured by the Collateral in which a Junior Claimholder has a Junior Lien, if any, in each case to the extent not inconsistent with the terms of this Agreement;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions with respect to the Junior Obligations and the Collateral in which a Junior Claimholder has a Junior Lien that are, in each case, in accordance with the terms of this Agreement; provided that (A) no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Junior Collateral Agent or any other Junior Claimholder in respect of such Collateral may be inconsistent with the terms of this Agreement and (B) neither any Junior Collateral Agent nor any other Junior Claimholder shall propose, vote to accept, or otherwise support a plan of reorganization that is inconsistent with the terms of this Agreement with respect to treatment of such Collateral;
(5) exercise any of its rights or remedies with respect to the Collateral (after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase any Collateral in which a Junior Claimholder has a Junior Lien at any public, private or judicial foreclosure upon such Collateral initiated by the Senior Collateral Agent or any other Senior Claimholder, or any sale of any such Collateral during an Insolvency or Liquidation Proceeding; provided that any such bid may not include a “credit bid” in respect of any Junior Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of Senior Obligations.
(d) Subject to Sections 3.1(a)(1), 3.1(c) and Section 6.3(b):
(1) the Subordinated each Junior Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien its Related Claimholders, :
(1) agrees that the Subordinated Collateral Trustee it and the Subordinated Lien its Related Claimholders will not take any action that would hinder hinder, delay, limit or prohibit any exercise of rights or remedies under the First Lien Senior Documents or is otherwise prohibited hereunderhereunder with respect to any Collateral in which a Junior Claimholder has a Junior Lien, including any sale, lease, exchange, transfer collection or other disposition Disposition of the any such Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien securing any Senior Obligations or any Senior Collateral Document or subordinate the priority of the Senior Obligations to the Junior Obligations with respect to such Collateral or grant the Liens on such Collateral securing the Junior Obligations equal ranking to the Liens securing the Senior Obligations;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien its Related Claimholders may have as a junior lien Lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the First Lien Senior Collateral Agent Agents or the First Lien other Senior Claimholders seek to enforce or collect the First Lien Senior Obligations or the Liens securing the First Lien Senior Obligations granted with respect to the Collateral in any of the First Lien Collateral undertaken in accordance with this Agreementwhich a Junior Claimholder has a Junior Lien, regardless of whether any action or failure to act by or on behalf of the First Lien any Senior Collateral Agent or First Lien any other Senior Claimholders is adverse to the interest of the Subordinated Lien Claimholdersany Junior Claimholders with respect to such Collateral; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Junior Collateral Documents or any other Subordinated Lien Junior Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien any Senior Collateral Agent or the First Lien other Senior Claimholders with respect to the Collateral in which a Junior Claimholder has a Junior Lien as set forth in this Agreement and the First Lien Senior Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated The Junior Collateral Trustee Agents and the Subordinated Lien other Junior Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Obligors that has have guaranteed or granted Liens to secure the Subordinated Lien Junior Obligations in accordance with the terms of the Subordinated Lien Junior Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Debtor Relief Law with respect to any Obligor, prior to the termination of the Standstill Period; provided that (i) any such exercise shall not be inconsistent with the terms of this Agreement (including Sections 2.2 and 6) and (ii) in the event that any Subordinated Lien Junior Claimholder becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated Lien Junior Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Senior Obligations) as the other Liens securing the Subordinated Lien Junior Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing . Nothing in this Agreement shall prohibit the receipt by the Subordinated any Junior Collateral Trustee Agent or any Subordinated Lien Claimholders Junior Claimholder of the required payments of principal, premium, interest, principal fees and other amounts owed in respect of due under the Subordinated Lien Obligations Junior Documents so long as such receipt is not the direct or indirect result of the exercise by the Subordinated a Junior Collateral Trustee Agent or any Subordinated Lien Claimholders other Junior Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention respect of this Agreement of any Lien held by any of them. Nothing Collateral 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 Collateralwhich a Junior Claimholder has a Junior Lien.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Option Care Health, Inc.), Indenture (Option Care Health, Inc.)
Exercise of Remedies. If an Event of Default occurs, Buyer may exercise the following rights and remedies in its sole discretion:
(a) Until the Discharge of First Lien Obligations has occurredBy written notice (which may be delivered via email, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company telecopy, overnight mail, regular mail or any other Grantormethod selected by Buyer in its sole discretion) to Seller (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Event of Insolvency of Seller), the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will Repurchase Date for each Transaction hereunder, if it has not exercise already occurred, shall be deemed immediately to occur. Any written notice given by Buyer hereunder shall be deemed to have been received by Seller immediately upon such notice having been sent by Buyer to Seller’s address, fax number or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreementemail address, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure case may be, specified on the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2signature page hereof.
(b) Until If Buyer exercises or is deemed to have exercised the Discharge option referred to in subsection (a) of First Lien Obligations has occurredthis Section,
(i) Seller’s obligations in such Transactions to repurchase all Purchased Loans, whether at the Repurchase Price therefore on the Repurchase Date determined in accordance with subsection (a) of this Section, shall thereupon become immediately due and payable, and all Income paid after such exercise or not any Insolvency or Liquidation Proceeding has been commenced deemed exercise shall be retained by or against Buyer and applied to the Company or aggregate unpaid Repurchase Price and any other Grantoramounts owed by Seller hereunder;
(ii) to the extent permitted by applicable law, the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions Repurchase Price with respect to each such Transaction shall be increased by the Collateral without any consultation with or aggregate amount accrued by daily application of, on a 360 day per year basis for the consent actual number of days during the period from and including the date of the Subordinated Collateral Trustee exercise or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds deemed exercise of such Collateral released or disposed option to but excluding the date of subject payment of the Repurchase Price as so increased, (x) the Post-Default Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subsection (a) of this Section (decreased as of any day by (i) any amounts actually in the possession of Buyer pursuant to Section 10.02, and (ii) any proceeds from the sale of Purchased Loans applied to the relative priorities described in Repurchase Price pursuant to Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.10.03; and
(c) Notwithstanding the foregoingBy written notice (which may be delivered via email, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company telecopy, overnight mail, regular mail or any other Grantor;
(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, 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 method selected by any person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral Buyer in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bsole discretion) and this Section 3.1(c)to Seller, the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents Repurchase Price 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 Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) each Transaction hereunder shall be deemed to restrict in any way the rights be due and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated Lien Obligations, such judgment Lien payable on each Repurchase Date therefor. Any written notice given by Buyer hereunder shall be subject deemed to the terms of this Agreement for all purposes (including in relation have been received by Seller immediately upon such notice having been sent by Buyer to the First Lien Obligations) Seller’s address, fax number or email address, as the other Liens securing case may be, specified on the Subordinated Lien Obligations are subject to this Agreementsignature page hereof.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 2 contracts
Sources: Master Repurchase Agreement, Master Repurchase Agreement (Redfin CORP)
Exercise of Remedies. (a) Until the Discharge If a Material Adverse Change 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies European Law shall have occurred with respect to any Collateral (including the exercise an Affected Subsidiary, and such Material Adverse Change of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement European Law shall continue to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding be in effect with respect to such rights or Affected Subsidiary for a period of six months after such occurrence, then, subject to Sections 4.1(c) and 4.1(d) and only upon approval of the Board of Trustees, and following notice to and, if and to the extent required under the laws then applicable, approval by, the SEC, the Trust may exercise any of the following remedies (including any action of foreclosure)each, a “Six-Month Remedy”):
(i) deliver confidential or public and non-binding or binding advice or a recommendation to NYSE Euronext, NYSE Group or Archipelago Holdings with respect to such Affected Subsidiary relating to the Assumed Matters;
(2ii) will not contestassume management responsibilities of NYSE Group, protest Archipelago Holdings or object the Affected Subsidiary solely with respect to any foreclosure proceeding some or action brought by all of the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseAssumed Matters; and
(3iii) subject to their rights under exercise the call option over Priority Shares, as set forth in clause (a)(1i) above, will not object to of Section 4.2(a) (the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2“Priority Share Call Option Remedy”).
(b) Until the Discharge If a Material Adverse Change 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 First Lien Claimholders European Law shall have occurred with respect to an Affected Subsidiary, and such Material Adverse Change of European Law shall continue to be in effect with respect to such Affected Subsidiary for a period of nine months after such occurrence (the exclusive right to enforce rights“Resolution Period”), exercise remedies (including set-off, recoupment and the right to credit bid their debt) andthen, subject to Section 5.1Sections 4.1(c) and 4.1(d) and only upon approval of the Board of Trustees, and following notice to make determinations regarding the releaseand, disposition, or restrictions with respect if and to the Collateral without any consultation with or extent required under the consent of laws then applicable, approval by the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided thatSEC, the Lien securing Trust may exercise the Subordinated Lien Obligations shall remain on call option over the proceeds of such Collateral released common stock or disposed of subject to the relative priorities described voting securities, as set forth in Section 2. In exercising rights and remedies with respect to the Collateral4.2 (such remedy, the First Lien Collateral Agent “Voting Share Call Option Remedy” and together with the First Lien Claimholders may enforce Priority Share Call Option Remedy, the provisions of “Call Option Remedies” and together with the First Lien Documents and exercise remedies thereunderSix-Month Remedies, 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction“Remedies”).
(c) Notwithstanding anything to the foregoingcontrary in this Agreement, the Subordinated Collateral Trustee Trust shall have the right to exercise a Remedy only if and any Subordinated Lien Claimholder mayto the extent that such Remedy (i) causes all Affected Subsidiaries to cease to be subject to a Material Adverse Change of European Law; and (ii) is the Remedy available that causes the least intrusion on the conduct of the business and operations of NYSE Euronext, NYSE Group, Archipelago Holdings, the Affected Subsidiaries and their respective Subsidiaries by their respective governing bodies. In determining whether a Remedy satisfies the conditions set forth in clause (ii) of the immediately preceding sentence:
(1A) file a claim or statement negative control by the Trust over the business and operations of interest with respect to NYSE Euronext, NYSE Group, Archipelago Holdings, the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced Affected Subsidiaries and their respective Subsidiaries shall be preferred over affirmative control by or against the Company or any other GrantorTrust;
(2B) take any action (not adverse to the priority status authority of the Liens on Trust shall be asserted over the Collateral securing fewest and most narrow decisions of NYSE Euronext, NYSE Group, Archipelago Holdings, 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, preserve or protect its Lien on the CollateralAffected Subsidiaries and their respective Subsidiaries;
(3C) 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 a Remedy covering fewer entities and subsidiary entities (such as an Affected Subsidiary) shall be preferred over a Remedy covering more entities and parent entities (such as NYSE Group);
(D) the disallowance Priority Share Call Option Remedy shall be viewed as a Remedy of last resort among the claims of the Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this AgreementSix-Month Remedies; and
(4E) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity Voting Share Call Option Remedy shall be viewed as a creditor, unless and until the Discharge Remedy of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredlast resort among all Remedies.
(d) Subject Prior to Sections 3.1(c) and Section 6.3(b):the exercise of any Remedy, the Board of Trustees must first:
(1i) consult with the Subordinated Collateral TrusteeBoard of Directors of NYSE Euronext, for itself and on behalf the Board of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee Directors of NYSE Group and the Subordinated Lien Claimholders will not take any action that would hinder any SEC during the Resolution Period to consider alternatives to the exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateralsuch Remedy, whether as suggested by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken foregoing or otherwise, to address or mitigate the effects of any Material Adverse Change of European Law, taking into account any possible adverse consequences for NYSE Euronext or NYSE Group in accordance with this Agreementterms of taxation or accounting treatment, regardless acting in each case in the best interests of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien ClaimholdersNYSE Euronext; and
(3ii) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenantafter such consultation, agreement or restriction contained notify in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect writing to the Collateral as Board of Directors of NYSE Euronext and the Board of Directors of NYSE Group that the Board of Trustees has determined in its reasonable opinion that such Remedy satisfies the conditions set forth in this Agreement and the First Lien DocumentsSection 4.1(c).
(e) Except Any determination as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that to whether there has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms been a Material Adverse Change of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor European Law with respect to the Subordinated Lien Obligations, an Affected Subsidiary and whether such judgment Lien Material Adverse Change of European Law is continuing shall be subject made by the Board of Trustees. The Board of Trustees shall be entitled to change its determination as to whether a Material Adverse Change of European Law shall have occurred and/or is continuing, and in no event shall the terms of this Agreement for all purposes (including in relation Trust be obligated to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreementexercise any Remedy.
(f) Except as specifically Without limitation to the standards set forth in Sections 3.1(a) and (dSection 4.1(c), nothing the exercise of one or more Remedies at any point in time shall not limit the right of the Trust to exercise further Remedies at one or more later times.
(g) Nothing in this Agreement shall prohibit the receipt by SEC from bringing such matters to the Subordinated Collateral Trustee or any Subordinated Lien Claimholders attention of the required payments Trustees as the SEC deems relevant or from providing advice to the Trustees at any time before or after the occurrence of interest, principal and other amounts owed in respect a Material Adverse Change of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor European Law.
(including set-off and recoupmenth) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs shall (i) limit the ability of the Trustees to provide confidential non-binding advice to NYSE Euronext at any time before the end of the Resolution Period or otherwise adversely affects (ii) prevent NYSE Euronext, in its sole discretion, from implementing any rights or remedies remedy at any time before the First Lien Collateral Agent or end of the First Lien Claimholders may have with respect to the First Lien CollateralResolution Period.
Appears in 2 contracts
Sources: Trust Agreement (IntercontinentalExchange Group, Inc.), Trust Agreement (NYSE Euronext)
Exercise of Remedies. (a) 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 Subordinated each Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that each Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 150 days has elapsed since the later of: (including i) the date on which such Second Lien Collateral Agent declared the existence of any Event of Default (and as defined in) under any Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Collateral Agent received notice from such Second Lien Collateral Agent of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Collateral Agent or any Second Lien Claimholder take any Enforcement Action with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, (i) the First Lien Collateral Agent or the First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agents) or (ii) any Grantor shall be subject to any Insolvency or Liquidation Proceeding (provided that in any such Insolvency or Liquidation Proceeding any Second Lien Collateral Agent or Second Lien Claimholder may take any action of foreclosureexpressly permitted by Section 6);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; otherwise;(including any Enforcement Action initiated by or supported by the First Lien Collateral Agent or any First Lien Claimholder) and
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the First Lien Collateral Agent or the any First Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted First Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Collateral Agents shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agents or any Subordinated other Second Lien Claimholder; provided that, that any proceeds received by the First Lien securing the Subordinated Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Collateral Agents or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agents and any Subordinated other Second Lien Claimholder may:
(1) vote, file a claim or statement of interest and take any other action not in violation of the provisions of this Agreement with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, preserve or protect (but not enforce) its Lien on the CollateralCollateral and neither the First Lien Collateral Agent nor any First Lien Claimholder will object to or contest, or otherwise support any other person in contesting or objecting to, any such action taken in accordance with the terms of this Agreement (provided that nothing herein shall prevent the First Lien Collateral Agent or First Lien Claimholders from enforcing this Agreement);
(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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Collateral Agents or any other Second Lien Claimholder may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations; and
(7) take any action not otherwise in violation of this Agreement to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims. The Subordinated Each Second Lien Collateral TrusteeAgent, for itself and on behalf of itself and each Subordinated other applicable Second Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) (to the extent the Second Lien Collateral Agents and Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a), 3.1(c) and Section 6.3(b):
(1) the Subordinated each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other applicable Second Lien ClaimholdersClaimholder, agrees that the Subordinated such Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other applicable Second Lien ClaimholdersClaimholder, hereby waives any and all rights it or the Subordinated such Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated each Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated applicable Second Lien Collateral Documents or any other Subordinated applicable Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)this Agreement, the Subordinated Second Lien Collateral Trustee Agents and the Subordinated other 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d3.1(d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agents or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Collateral Agent or the any other First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
(g) The First Lien Collateral Agent shall use commercially reasonable efforts to deliver simultaneous written notice to each Second Lien Collateral Agent of the First Lien Collateral Agent commencing any Enforcement Action; provided that failure to deliver such notice shall not impair the validity of such Enforcement Action or give rise to liability hereunder.
Appears in 2 contracts
Sources: Indenture (Karyopharm Therapeutics Inc.), Omnibus Amendment to Transaction Documents (Karyopharm Therapeutics Inc.)
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1i) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (including i) the date on which the Second Lien Collateral Agent declared the existence of any action “Event of foreclosureDefault” under any Second Lien Documents and demanded the repayment of all the principal amount of any Second Lien Obligations and (ii) the date on which the First Lien Collateral Agent received notice from the Second Lien Collateral Agent of such declarations of an “Event of Default” (the “Standstill Period”) (provided that the Second Lien Collateral Agent shall have given the First Lien Collateral Agent at least 15 days written notice prior to such Enforcement Action, which notice may be given during the pendency of the applicable Standstill Period); provided, further, that 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 First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies (or shall have sought or requested relief or modification of the automatic stay or any other stay in an Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and;
(3iii) subject to their rights under clause (a)(1a)(i) above, will not object to the forbearance by the 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 Collateral, in each case so long as any proceeds received by the Liens granted First Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of are distributed in accordance with the Subordinated Lien Claimholders attach to the proceeds thereof UCC and other applicable law, subject to the relative priorities described herein;
(iv) will not take or cause to be taken any action, the purpose or effect of which is to make any Lien in Section 2respect of any Second Lien Obligation pari passu with or senior to, or give any Second Lien Claimholder any preference or priority relative to, the Liens with respect to the First Lien Obligations or the First Lien Claimholders; and
(v) will not institute any suit or other proceeding or assert in any suit, Insolvency or Liquidation Proceeding or other proceeding any claim against any First Lien Claimholder or First Lien Collateral Agent seeking damages from or other relief by way of specific performance, injunction or otherwise, with respect to, and no First Lien Claimholder or First Lien Collateral Agent shall be liable to the Second Lien Collateral Agent or any Second Lien Claimholder for, any action taken or omitted to be taken by such First Lien Claimholder or First Lien Collateral Agent with respect to any Collateral or pursuant to the First Lien Loan Documents.
(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, subject to Section 3.1(a)(i), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to “credit bid bid” their debt) and, except that the Second Lien Collateral Agent shall have the “credit bid” rights set forth in Section 3.1(c)(vi)), subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that, that any proceeds received by the First Lien securing the Subordinated Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on are distributed in accordance with the proceeds of such Collateral released or disposed of UCC and other applicable law, subject to the relative priorities described in Section 2herein. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Collateral Agent or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1i) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) 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, preserve or protect its Lien on the Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Collateral Agent or any Second Lien Claimholder may be inconsistent with the provisions of this Agreement;
(v) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i); and
(vi) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations. The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(i) to the extent the Second Lien Collateral Agent and Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Second Lien Collateral 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1i) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3iii) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Security Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)To the extent not inconsistent with the terms of this Agreement, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal principal, premium, fees and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs shall impair or otherwise adversely affects affect 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 2 contracts
Sources: Indenture (KCG Holdings, Inc.), Intercreditor Agreement (KCG Holdings, Inc.)
Exercise of Remedies. (a) Until the Discharge of First Lien Senior Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Third Lien Representative, the Third Lien Collateral Trustee Agent and the Subordinated Third Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Third Lien Representative and/or the Third Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after (i) the passage of a period of at least 180 days has elapsed (which period will be tolled during any period in which any Senior Representative, any Senior Collateral Agent or any other Senior Claimholders is not entitled to enforce or exercise any rights or remedies with respect to any Collateral as a result of (including x) any injunction issued by a court of competent jurisdiction or (y) the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder automatic stay or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, stay in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable lawProceeding; provided that in each case the event Senior Representatives, any Senior Collateral Agents or any other Senior Claimholders are diligently pursuing relief from such injunction or stay) since the date the Senior Representatives received notice from the Third Lien Representative that such Third Lien Representative has declared the existence of any Subordinated Event of Default under (and as defined in) any Third Lien Claimholder becomes a judgment Lien creditor in respect Loan Document and demanded the repayment of Collateral as a result all the principal amount of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated any Third Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.thereunder or
Appears in 2 contracts
Sources: Third Lien Subordination and Intercreditor Agreement, Third Lien Subordination and Intercreditor Agreement
Exercise of Remedies. (a) Until So long as the Discharge of First Lien 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, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) none of the Term Collateral Agent, the Term Secured Parties, the Notes Collateral Agent or the Notes Secured Parties (x) will not exercise or seek to exercise any rights or remedies (including, without limitation, setoff) with respect to any ABL Priority Collateral (including including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority Collateral to which the Subordinated Term Collateral Trustee Agent, any Term Secured Party, the Notes Collateral Agent or any Subordinated Lien Claimholder Notes Secured Party is a party) or institute or commence or join with any Person (other than the ABL Collateral Agent and the ABL Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution);
; provided, however, that the Term 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 ABL Collateral Agent of the Term Collateral Agent’s intention to exercise its right to take such actions (2the “Term Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the Term Collateral Agent nor any Term Secured Party will exercise any rights or remedies with respect to any ABL Priority Collateral if, notwithstanding the expiration of the Term Standstill Period, the ABL Collateral Agent or ABL Secured Parties shall have commenced the exercise of any of their rights or remedies with respect to all or any portion of the ABL Priority Collateral (prompt notice of such exercise to be given to the Term Collateral Agent) and are pursuing the exercise thereof, (y) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien ABL Collateral Agent or any First Lien Claimholder ABL Secured Party with respect to, or any other exercise by the First Lien ABL Collateral Agent or any First Lien Claimholder ABL Secured Party of any rights and remedies relating to to, the ABL Priority Collateral under the First Lien ABL Documents or otherwise; and
, or (3z) subject to their the rights of the Term Collateral Agent under clause (a)(1i)(x) above, will not object to the forbearance by the First Lien ABL Collateral Agent or the First Lien Claimholders ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Lien Claimholders Term Secured Parties and the Notes Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until 3.1; provided, that 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 Notes Collateral Agent and the First Notes Secured Parties will not object to the forbearance by the Term Collateral Agent or the Term Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so long as the interests of the Notes Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 3.1; provided, however, that nothing in this Section 3.2(a) shall be construed to authorize (A) the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes Secured Party to sell any ABL Priority Collateral free of the Lien Claimholders of the ABL Collateral Agent or any ABL Secured Party or (B) the Notes Collateral Agent or any Notes Secured Party to sell any ABL Priority Collateral free of the Lien of the Term Collateral Agent or any Term Secured Party; and
(ii) the ABL Collateral Agent and the ABL Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment setoff and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositiondisposition of, or restrictions with respect to to, the ABL Priority Collateral without any consultation with or the consent of the Subordinated Term Collateral Trustee Agent, any Term Secured Party, the Notes Collateral Agent or any Subordinated Notes Secured Party; provided, that:
(1) the Term Collateral Agent may take any action (not adverse to the prior Liens on the ABL Priority Collateral securing the ABL Obligations, or the rights of any ABL Collateral Agent or the ABL Secured Parties to exercise remedies in respect thereof) in order to preserve or protect its Lien Claimholder; provided thaton the ABL Priority Collateral;
(2) the Notes Collateral Agent may take any action (not adverse to the prior Liens on the ABL Priority Collateral securing the ABL Obligations and the Term Obligations, or the rights of any ABL Collateral Agent, the ABL Secured Parties, any Term Collateral Agent or the Term Secured Parties to exercise remedies in respect thereof) in order to preserve or protect its Lien securing the Subordinated Lien Obligations shall remain on the proceeds ABL Priority Collateral;
(3) the Term Secured Parties and the Notes 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 such Collateral released the claims of the Term Secured Parties or disposed the Notes Secured Parties, as applicable, including without limitation any claims secured by the ABL Priority Collateral, if any, in each case in accordance with the terms of subject this Agreement;
(4) the Term Secured Parties and the Notes 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement;
(5) the Term Secured Parties and the Notes Secured Parties 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 relative priorities described in Section 2ABL Priority Collateral; and
(6) the Term Collateral Agent or any Term Secured Party may exercise any of its rights or remedies with respect to the ABL Priority Collateral after the termination of the Term Standstill Period to the extent permitted by clause (i)(x) above. In exercising rights and remedies with respect to the ABL Priority Collateral, the First Lien ABL Collateral Agent and the First Lien Claimholders ABL Secured Parties may enforce the provisions of the First Lien 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 ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding Following the foregoingDischarge of ABL Obligations, so long as the Subordinated Collateral Trustee and Discharge of Term Obligations has not occurred, whether or not any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;:
(2i) none of the Notes Collateral Agent and the Notes Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, setoff) with respect to any ABL Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority Collateral to which the Notes Collateral Agent or any Notes Secured Party is a party) or institute or commence, or join with any Person (other than the Term Collateral Agent and the Term Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure), enforcement, collection or execution; (y) will contest, protest or object to any foreclosure proceeding or action brought by the Term Collateral Agent or any Term Secured Party with respect to, or any other exercise by the Term Collateral Agent or any Term Secured Party of any rights and remedies relating to, the ABL Priority Collateral under the Term Documents or otherwise, or (z) will object to the forbearance by the Term Collateral Agent or the Term Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so long as the respective interests of the Notes Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 3.1; and
(ii) the Term Collateral Agent and the Term 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 disposition of, or restrictions with respect to, the ABL Priority Collateral without any consultation with or the consent of the Notes Collateral Agent or any Notes Secured Party; provided, that:
(1) the Notes Collateral Agent may take any action (not adverse to the priority status of the prior Liens on the ABL Priority Collateral securing the First Lien Term Obligations, or the rights of any First Lien Term Collateral Agent or the First Lien Claimholders Term Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the ABL Priority Collateral;
(32) the Notes 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 Subordinated Lien ClaimholdersNotes Secured Parties, including without limitation any claims secured by the ABL Priority Collateral, if any, in each case in accordance with the terms of this Agreement;
(3) the Notes 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement; and
(4) the Notes Secured Parties shall be entitled to vote on any plan of reorganization, reorganization and file any proof of claim, make 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 Subordinated Lien Obligations ABL Priority Collateral. In exercising rights and remedies with respect to the ABL Priority Collateral, the Term Collateral Agent and the CollateralTerm Secured Parties may enforce the provisions of the Term 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 Subordinated Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of ABL Priority Collateral Trusteeupon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Each of the Term Collateral Agent, on behalf of itself and each Subordinated Lien Claimholderthe Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentsetoff) with respect to any ABL Priority Collateral in its capacity as a creditor, unless and until the Discharge of First Lien ABL Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.2(a). Following the Discharge of ABL Obligations, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any ABL Priority Collateral unless and until the Discharge of Term Obligations has occurred. Without limiting the generality of the foregoing, (x) unless and until the Discharge of First Lien ABL Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bthe proviso in clause (ii) and this of Section 3.1(c3.2(a), the sole right of the Subordinated Term Collateral Trustee Agent and the Subordinated Lien Claimholders Term Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Subordinated Lien Collateral Term 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 Lien ABL Obligations has occurred in accordance with the terms hereof, the Term Documents and applicable law and (y) unless and until the Discharge of ABL Obligations and the Discharge of Term Obligations have occurred, except as expressly provided in the proviso in clause (ii) of Section 3.2(a) and the proviso in clause (ii) of Section 3.2(b), the sole right of the Notes Collateral Agent and the Notes Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Notes 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 ABL Obligations and the Discharge of Term Obligations have occurred in accordance with the terms hereof, the ABL Documents, the Term Documents and applicable law.
(d) Subject to Sections 3.1(cthe proviso in clause (ii) and of Section 6.3(b3.2(a), the proviso in clause (ii) of Section 3.2(b):
(1i) the Subordinated Term Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Secured Parties, agrees that the Subordinated Term Collateral Trustee Agent and the Subordinated Lien Claimholders Term Secured Parties will not take any action that would hinder any exercise of remedies under the First Lien ABL Documents with respect to the ABL Priority Collateral or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Notes Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersNotes Secured Parties, agrees that the Notes Collateral Agent and the Notes Secured Parties will not take any action that would hinder any exercise of remedies under the ABL Documents or the Term Documents with respect to the ABL Priority Collateral or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral, whether by foreclosure or otherwise;
(iii) the Term Collateral Agent, for itself and on behalf of the Term Secured Parties, hereby waives any and all rights it or the Subordinated Lien Claimholders Term Secured Parties may have as a junior lien creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in which the First Lien ABL Collateral Agent or the First Lien Claimholders ABL Secured Parties seek to enforce or collect the First Lien ABL Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien ABL Collateral Agent or First Lien Claimholders ABL Secured Parties is adverse to the interest of the Subordinated Lien ClaimholdersTerm Secured Parties; and
(3iv) the Subordinated Notes Collateral Trustee Agent, for itself and on behalf of the Notes Secured Parties, hereby waives any and all rights it or the Notes Secured Parties may have as a junior lien creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in which the ABL Collateral Agent, the ABL Secured Parties, the Term Collateral Agent or the Term Secured Parties seek to enforce or collect the ABL Obligations or the Term Obligations or the Liens granted in any of the ABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the ABL Collateral Agent, the ABL Secured Parties, the Term Collateral Agent or the Term Secured Parties is adverse to the interest of the Notes Secured Parties.
(e) The Term Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 2 contracts
Sources: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Term 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) none of the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral Agent or the Notes Secured Parties (x) will not exercise or seek to exercise any rights or remedies (including, without limitation, setoff) with respect to any TL Priority Collateral (including including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of TL Priority Collateral to which the Subordinated ABL Collateral Trustee Agent, the Notes Collateral Agent, any ABL Secured Party or any Subordinated Lien Claimholder Notes Secured Party is a party) or institute or commence, or join with any Person (other than the Term Collateral Agent and the Term Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
, enforcement, collection or execution; provided, however, that the ABL 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 Term Collateral Agent of the ABL Collateral Agent’s intention to exercise its right to take such actions (2the “ABL Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the ABL Collateral Agent nor any ABL Secured Party will exercise any rights or remedies with respect to any TL Priority Collateral if, notwithstanding the expiration of the ABL Standstill Period, the Term Collateral Agent or Term Secured Parties shall have commenced the exercise of any of their rights or remedies with respect to all or any portion of the TL Priority Collateral (prompt notice of such exercise to be given to the ABL Collateral Agent) and are pursuing the exercise thereof, (y) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Term Collateral Agent or any First Lien Claimholder Term Secured Party with respect to, or any other exercise by the First Lien Term Collateral Agent or any First Lien Claimholder Term Secured Party of any rights and remedies relating to to, the TL Priority Collateral under the First Lien Term Documents or otherwise; and
, or (3z) subject to their the rights of the ABL Collateral Agent under clause (a)(1i)(x) above, will not object to the forbearance by the First Lien Term Collateral Agent or the First Lien Claimholders Term Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the TL Priority Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Lien Claimholders ABL Secured Parties and the Notes Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until 2.1; provided, that 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 Notes Collateral Agent and the First Notes Secured Parties will not object to the forbearance by the ABL Collateral Agent or the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the TL Priority Collateral, in each case so long as the interests of the Notes Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.1; provided, however, that nothing in this Section 2.2(a) shall be construed to authorize (A) the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party to sell any TL Priority Collateral free of the Lien Claimholders of the Term Collateral Agent or any Term Secured Party or (B) the Notes Collateral Agent or any Notes Secured Party to sell any TL Priority Collateral free of the Lien of the ABL Collateral Agent or any ABL Secured Party; and
(ii) subject to Section 4, the Term Collateral Agent and the Term Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment setoff and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositiondisposition of, or restrictions with respect to to, the TL Priority Collateral without any consultation with or the consent of the Subordinated ABL Collateral Trustee Agent, any ABL Secured Party, the Notes Collateral Agent or any Subordinated Notes Secured Party; provided, that:
(1) the ABL Collateral Agent may take any action (not adverse to the prior Liens on the TL Priority Collateral securing the Term Obligations, or the rights of any Term Collateral Agent or the Term Secured Parties to exercise remedies in respect thereof) in order to preserve or protect its Lien Claimholder; provided thaton the TL Priority Collateral;
(2) the Notes Collateral Agent may take any action (not adverse to the prior Liens on the TL Priority Collateral securing the Term Obligations and the ABL Obligations, or the rights of any Term Collateral Agent, the Term Secured Parties, any ABL Collateral Agent or the ABL Secured Parties to exercise remedies in respect thereof) in order to preserve or protect its Lien securing the Subordinated Lien Obligations shall remain on the proceeds TL Priority Collateral;
(3) the ABL Secured Parties and the Notes 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 such Collateral released the claims of the ABL Secured Parties or disposed the Notes Secured Parties, as applicable, including without limitation any claims secured by the TL Priority Collateral, if any, in each case in accordance with the terms of subject this Agreement;
(4) the ABL Secured Parties and the Notes 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement;
(5) the ABL Secured Parties and the Notes Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insol- vency 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 relative priorities described TL Priority Collateral; and
(6) the ABL Collateral Agent or any ABL Secured Party may exercise any of its rights or remedies with respect to the TL Priority Collateral after the termination of the ABL Standstill Period to the extent permitted by clause (i)(x) above. Subject to Section 4, in Section 2. In exercising rights and remedies with respect to the TL Priority Collateral, the First Lien Term Collateral Agent and the First Lien Claimholders Term Secured Parties may enforce the provisions of the First Lien Term 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 TL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding Following the foregoingDischarge of Term Obligations, so long as the Subordinated Collateral Trustee and Discharge of ABL Obligations has not occurred, whether or not any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;:
(2i) none of the Notes Collateral Agent and the Notes Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, setoff) with respect to any TL Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of TL Priority Collateral to which the Notes Collateral Agent or any Notes Secured Party is a party) or institute or commence, or join with any Person (other than the ABL Collateral Agent and the ABL Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure), enforcement, collection or execution; (y) will contest, protest or object to any foreclosure proceeding or action brought by the ABL Collateral Agent or any ABL Secured Party with respect to, or any other exercise by the ABL Collateral Agent or any ABL Secured Party of any rights and remedies relating to, the TL Priority Collateral under the ABL Documents or otherwise, or (z) will object to the forbearance by the ABL Collateral Agent or the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the TL Priority Collateral, in each case so long as the respective interests of the Notes Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.1; and
(ii) the ABL Collateral Agent and the ABL 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 disposition of, or restrictions with respect to, the TL Priority Collateral without any consultation with or the consent of the Notes Collateral Agent or any Notes Secured Party; provided, that:
(1) the Notes Collateral Agent may take any action (not adverse to the priority status of the prior Liens on the TL Priority Collateral securing the First Lien ABL Obligations, or the rights of any First Lien ABL Collateral Agent or the First Lien Claimholders ABL Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the TL Priority Collateral;
(32) the Notes 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 Subordinated Lien ClaimholdersNotes Secured Parties, including without limitation any claims secured by the TL Priority Collateral, if any, in each case in accordance with the terms of this Agreement;
(3) the Notes 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement; and
(4) the Notes Secured Parties shall be entitled to vote on any plan of reorganization, reorganization and file any proof of claim, make 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 Subordinated Lien Obligations TL Priority Collateral. In exercising rights and remedies with respect to the TL Priority Collateral, the ABL Collateral Agent and the CollateralABL Secured Parties may enforce the provisions of the 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. The Subordinated Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of TL Priority Collateral Trusteeupon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Each of the ABL Collateral Agent, on behalf of itself and each Subordinated Lien Claimholderthe ABL Secured Parties and the Notes Collateral Agent, agrees on behalf of itself and the Notes Secured Parties, agree that it they will not take or receive any TL Priority Collateral or any proceeds of TL Priority Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentsetoff) with respect to any TL Priority Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Term Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 2.2(a) or in Section 4. Following the Discharge of Term Obligations, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that it will not take or receive any TL Priority Collateral or any proceeds of TL Priority Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any TL Priority Collateral unless and until the Discharge of ABL Obligations has occurred. Without limiting the generality of the foregoing, (x) unless and until the Discharge of First Lien Term Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bthe proviso in clause (ii) and this of Section 3.1(c)2.2(a) or in Section 4, the sole right of the Subordinated ABL Collateral Trustee and Agent, the Subordinated Lien Claimholders ABL Secured Parties with respect to the TL Priority Collateral is to hold a Lien on the TL Priority Collateral pursuant to the Subordinated Lien Collateral ABL 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 Lien Term Obligations has occurred in accordance with the terms hereof, the Term Documents and applicable law and (y) unless and until the Discharge of Term Obligations and Discharge of ABL Obligations have occurred, except as expressly provided in the proviso in clause (ii) of Section 2.2(a) and the proviso in clause (ii) of Section 2.2(b), the sole right of the Notes Collateral Agent and the Notes Secured Parties with respect to the TL Priority Collateral is to hold a Lien on the TL Priority Collateral pursuant to the Notes 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 Obligations and the Discharge of ABL Obligations has occurred in accordance with the terms hereof, the Term Documents, the ABL Documents and applicable law.
(d) Subject to Sections 3.1(cthe proviso in clause (ii) of Section 2.2(a), the proviso in clause (ii) of Section 2.2(b) and Section 6.3(b):4:
(1i) the Subordinated ABL Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersABL Secured Parties, agrees that the Subordinated ABL Collateral Trustee Agent and the Subordinated Lien Claimholders ABL Secured Parties will not take any action that would hinder any exercise of remedies under the First Lien Term Documents with respect to the TL Priority Collateral or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the TL Priority Collateral, whether by foreclosure or otherwise;,
(2ii) the Subordinated Notes Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersNotes Secured Parties, agrees that the Notes Collateral Agent and the Notes Secured Parties will not take any action that would hinder any exercise of remedies under the Term Documents or the ABL Documents with respect to the TL Priority Collateral or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the TL Priority Collateral, whether by foreclosure or otherwise,
(iii) the ABL Collateral Agent, for itself and on behalf of the ABL Secured Parties, hereby waives any and all rights it or the Subordinated Lien Claimholders ABL Secured Parties may have as a junior lien creditor with respect to the TL Priority Collateral or otherwise to object to the manner in which the First Lien Term Collateral Agent or the First Lien Claimholders Term Secured Parties seek to enforce or collect the First Lien Term Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementTL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Term Collateral Agent or First Lien Claimholders Term Secured Parties is adverse to the interest of the Subordinated Lien Claimholders; ABL Secured Parties, and
(3iv) the Subordinated Notes Collateral Trustee Agent, for itself and on behalf of the Notes Secured Parties, hereby waives any and all rights it or the Notes Secured Parties may have as a junior lien creditor with respect to the TL Priority Collateral or otherwise to object to the manner in which the Term Collateral Agent, the Term Secured Parties, the ABL Collateral Agent or the ABL Secured Parties seek to enforce or collect the Term Obligations or the ABL Obligations or the Liens granted in any of the TL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Term Collateral Agent, Term Secured Parties, the ABL Collateral Agent or the ABL Secured Parties is adverse to the interest of the Notes Secured Parties.
(e) The ABL Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.agree
Appears in 2 contracts
Sources: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien 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, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) the Second Lien Administrative Agent and the Second Lien Secured Parties:
(A) from the date hereof until the occurrence of the Second Lien Enforcement Date, will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Lien held by it under the Second Lien Collateral (including the exercise of any right of setoff Documents or any right under any lockbox agreement, account control agreement, landlord waiver other Second Lien Loan Document or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)otherwise;
(2B) will not contest, protest or object to to, or otherwise interfere with, hinder, or delay, any foreclosure proceeding or action brought Enforcement Action by the First Lien Collateral Administrative Agent or any First Lien Claimholder or any other exercise by Secured Party, provided that the First respective interests of the Second Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating Secured Parties attach to the Collateral under proceeds thereof, subject to the First Lien Documents or otherwiserelative priorities described in Section 2 and Section 4; and
(3C) subject to their the rights of the Second Lien Administrative Agent under clause (a)(1i)(A) above, will not contest, protest or object to the forbearance by the First Lien Collateral Administrative Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof Enforcement Action;
(ii) subject to the relative priorities described in Section 2.
(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 Grantor5.1, the First Lien Collateral Administrative Agent and the First Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) commence and, subject to Section 5.1if applicable, to maintain an Enforcement Action and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated Second Lien ClaimholderSecured Party; provided that:
(A) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Grantor, the Second Lien securing Administrative Agent, on behalf of itself and the Subordinated Second Lien Secured Parties, may file claims or statements of interest with respect to all or any portion of the Second Lien Obligations,
(B) the Second Lien Administrative Agent, on behalf of itself and the Second Lien Secured Parties, agrees that it will not retain any Collateral or any proceeds of Collateral in connection with any Enforcement Action against any Collateral, and that any Collateral or proceeds taken or received by it in connection with any Enforcement Action will be applied in accordance with Section 4.2 unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 6.8;
(C) the Second Lien Administrative Agent and Second Lien Secured Parties shall remain 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 Administrative Agent or Second Lien Secured Parties, including without limitation any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement;
(D) in any Insolvency or Liquidation Proceeding, the Second Lien Administrative Agent and 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement;
(E) in any Insolvency or Liquidation Proceeding, the Second Lien Administrative Agent and Second Lien Secured Parties shall be entitled to vote on any plan of reorganization; and
(F) the proceeds Second Lien Administrative Agent or any Second Lien Secured Party may exercise any of such its rights or remedies with respect to the Collateral released or disposed upon the occurrence and during the effective continuation of the Second Lien Enforcement Date subject to the relative priorities described in Section 2terms of this Agreement. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Administrative Agent and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 the First Lien Administrative Agent and the First Lien Secured Parties to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated The Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAdministrative Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) Enforcement Action with respect to any Collateral, and that any Collateral in its capacity as a creditoror such proceeds taken or received by it will be paid over to the First Lien Administrative Agent pursuant to Section 4.2, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 6.8. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c3.1(a)(ii), the sole right of the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Loan Documents and applicable law.
(dc) Subject to Sections 3.1(cthe proviso to clauses (i) and (ii) of Section 6.3(b):
(1) 3.1(a), the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that (i) the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders Secured Parties will not take any action that would hinder hinder, delay or impede any exercise of remedies by the First Lien Administrative Agent or any First Lien Secured Party under the First Lien Documents or is otherwise prohibited hereunderLoan Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated Second Lien Claimholders Secured Parties may have as a junior lien creditor or otherwise with respect to the First Lien Collateral to object to the manner or order in which the First Lien Collateral Administrative Agent or the First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; andCollateral.
(3d) the Subordinated Collateral Trustee The Second Lien Administrative Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Administrative Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 2 contracts
Sources: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)
Exercise of Remedies. (a) 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 Subordinated Collateral Trustee and the Subordinated each Second Lien ClaimholdersClaimholder:
(1i) except for payments permitted by Section 2.4(b), will not take from or for the account of any Grantor, by set-off or in any other manner, the whole or any part of any moneys which may now or hereafter be owing by any such Grantor with respect to the Second Lien Obligations; (ii) will not s▇▇ for payment of, or to initiate or participate with others in any suit, action or proceeding against any Grantor to (x) enforce payment of or to collect the whole or any part of the Second Lien Obligations (which shall include, for the avoidance of doubt, any demand or collection of payment at maturity), or (y) commence judicial enforcement of any of the rights and remedies under the Second Lien Loan Documents or applicable law with respect to the Second Lien Obligations; and (iii) will not exercise any put option or cause any Grantor to honor any redemption or mandatory prepayment obligation under any Second Lien Loan Document;
(2) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(23) will not contest, protest protest, object to, or object take any action to hinder or delay (including taking action to commence an involuntary Insolvency or Liquidation Proceeding) any foreclosure proceeding or action brought by the First Lien Collateral Agent PDL or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent PDL or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(34) subject to their rights under clause (a)(1) aboveexcept as may be permitted in Section 3.1(c), will not object to the forbearance by the First Lien Collateral Agent PDL 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 Collateral; provided, that, in each the case so long as of clause (3) above, the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders shall attach to the any remaining proceeds thereof subject resulting from actions taken by PDL or any First Lien Claimholder in accordance with this Agreement after application of such proceeds to the relative priorities described in Section 2effect a Discharge of First Lien Obligations.
(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 Borrower or any other Grantor, the First Lien Collateral Agent PDL and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositionDisposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder; provided thatprovided, that the Lien securing the Subordinated Second Lien Obligations shall remain on the remaining proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 22 after application of such proceeds to the extent necessary to effect a Discharge of First Lien Obligations. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent PDL and the First Lien Claimholders may enforce the provisions of the 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 any agent appointed by them to sell or otherwise dispose of 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 creditor under the UCC and of a secured creditor under Bankruptcy the Debtor Relief Laws of any applicable jurisdiction. Upon Discharge of First Lien Obligations, PDL shall deliver to the Second Lien Agent any remaining proceeds of Collateral held by PDL.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Obligations after the commencement of any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the first priority status of the Liens on the Collateral securing the First Lien Obligations, Obligations or the rights of any First Lien Collateral Agent PDL or the First Lien Claimholders to exercise 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 Subordinated Second Lien ClaimholdersClaimholders or the Lien securing the Second Lien Obligations;
(4) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by PDL or any other First Lien Claimholder, including to the extent that such action could not reasonably be expected to interfere with any claims secured such enforcement action, but no Second Lien Claimholder may receive any proceeds thereof unless expressly permitted herein;
(5) receive from the Borrower and retain any dividends, distributions or other payments made by the CollateralBorrower to its stockholders to the extent the same are permitted by or consented to under the Credit Agreement, if anynone of which rights shall be deemed to be subordinated hereunder;
(6) accelerate the Second Lien Obligations as a result of an event of default under the Second Lien Loan Documents so long as the Second Lien Claimholders comply with all other terms and conditions of this Agreement;
(7) receive reimbursement for actual, reasonable out-of-pocket legal fees and expenses incurred by Second Lien Agent in connection with the preparation and amendment of the Second Lien Loan Documents and this Agreement;
(8) 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 in accordance not inconsistent with the terms of this Agreement; and
(49) 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 Subordinated Second Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Each Second Lien Claimholder, Claimholder agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge creditor in violation of First Lien Obligations has occurredthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), Section 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders with respect to the Second Lien Collateral is to hold a Lien on the Second Lien Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections Section 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated each Second Lien Claimholders, Claimholder agrees that the Subordinated Collateral Trustee and the Subordinated such Second Lien Claimholders Claimholder will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents (including taking action to commence an involuntary Insolvency or Liquidation Proceeding) or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition Disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated each Second Lien Claimholders, Claimholder hereby waives any and all rights it or the Subordinated such Second Lien Claimholders Claimholder may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent PDL or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent PDL or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby each Second Lien Claimholder acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent PDL or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) Subject to the terms and (d)conditions of this Agreement, the Subordinated Collateral Trustee Second Lien Agent and the Subordinated 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien creditor in respect of the Second Lien Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 PDL or the First Lien Claimholders may have with respect to the First Lien Collateral.
(g) PDL shall inform the Second Lien Claimholders of any exercise of remedies by PDL in respect of any Collateral. The Second Lien Claimholders shall inform PDL of any exercise of remedies by such Second Lien Claimholders in respect of any Collateral (notwithstanding that any such exercise of remedies shall be prohibited by the terms of this Agreement).
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (CareView Communications Inc)
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Lien Collateral Trustee may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (i) the date on which the Second Lien Collateral (including Trustee declared the exercise existence of any right Event of setoff or any right Default (and as defined in) under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the Subordinated First Lien Administrative Agent received notice from the Second Lien Collateral Trustee of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute take any action or proceeding Enforcement Action with respect to such the Collateral if, notwithstanding the expiration of the Standstill Period, the First Lien Administrative Agent or the First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (including any action prompt notice of foreclosuresuch exercise to be given to the Second Lien Collateral Trustee);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Administrative Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Administrative Agent or any First Lien Claimholder of any rights and remedies relating to the First Lien Collateral under the First Lien Loan Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by the First Lien Administrative Agent or any First Lien Claimholder); and
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the First Lien Collateral Administrative Agent or the any First Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted First Lien Administrative Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Administrative Agent and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Collateral Trustee shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee or any Subordinated other Second Lien Claimholder; provided that, that any proceeds received by the First Lien securing the Subordinated Administrative Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Administrative Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Collateral Trustee or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction, consistent with the First Lien Loan Documents.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Administrative Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Collateral Trustee or any other Second Lien Claimholder may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Administrative Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations; and
(7) object to any proposed acceptance of Collateral by the First Lien Administrative Agent or any First Lien Claimholder pursuant to Section 9-620 of the UCC. The Subordinated Second Lien Collateral Trustee, for itself and on behalf of itself and each Subordinated other Second Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) (to the extent the Second Lien Collateral Trustee and Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Collateral Trustee and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a), 3.1(c) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral Trustee, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, agrees that the Subordinated Second Lien Collateral Trustee and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Second Lien Collateral Trustee, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Administrative Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated Second Lien Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Administrative Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)Notwithstanding any other provision of this Agreement to the contrary, the Subordinated Second Lien Collateral Trustee and the Subordinated other 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d3.1(d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Collateral Administrative Agent or the any other First Lien Claimholders Claimholder may have against the Grantors with respect to the First Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorLoan Party, the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated Junior Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Applicable Junior Lien Representative and/or the Applicable Junior Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 150 days has elapsed since the later of (i) the date on which a Junior Lien Representative declared the existence of any Event of Default under (and as defined in) any Secured Loan Document to which such Junior Lien Representative is a party; and (ii) the date on which the Applicable Senior Lien Representative received notice from such ▇▇▇▇▇▇ ▇▇▇▇ Representative of such declaration of such Event of Default (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Junior Lien Representative, any Junior Lien Collateral Agent or any Junior Lien Claimholder take any Enforcement Action with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, (i) the Applicable Senior Lien Representative, the Applicable Senior Lien Collateral Agent or the Applicable Senior Lien Claimholders shall have commenced and be diligently pursuing in good faith an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (including prompt notice of such exercise to be given to the Junior Lien Representatives), (ii) any Loan Party shall be subject to any Insolvency or Liquidation Proceeding (provided that in any such Insolvency or Liquidation Proceeding any Junior Lien Representative, Junior Lien Collateral Agent or Junior Lien Claimholder may take any action expressly permitted by Section 3.1(c), Section 3.1(e) or Section 6 hereof); provided further that any Applicable Junior Lien Claimholder that takes any Enforcement Action pursuant to this Section 3.1 shall provide notice to each Senior Lien Representative of its election to take such Enforcement Actions hereunder (provided that the provision of any such notice shall not be a condition to the exercise of any right such Enforcement Action that is otherwise made in accordance herewith, nor shall a failure to provide any such notice result in a breach 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 Subordinated Collateral Trustee or any Subordinated this Agreement by such Applicable Junior Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosureClaimholder);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First any Senior Lien Representative, any Senior Lien Collateral Agent or any First Senior Lien Claimholder or any other exercise by the First any Senior Lien Representative, any Senior Lien Collateral Agent or any First Senior Lien Claimholder of any rights and remedies relating to the Collateral under the First Senior Lien Loan Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any Senior Lien Representative, any Senior Lien Collateral Agent or any Senior Lien Claimholder); and
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any Senior Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any Senior Lien Representative or Senior Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of Senior Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(b) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorLoan Party, subject to Section 3.1(a)(1), the First Senior Lien Representatives, the Senior Lien Collateral Agent Agents and the First Senior Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, rights and exercise remedies with respect to the Collateral (including set-off, recoupment and the right to credit bid their debt) and, except that Junior Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholder; provided that, the that any proceeds received by any Senior Lien securing the Subordinated Representative or Senior Lien Collateral Agent in excess of those necessary to achieve a Discharge of Senior Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Senior Lien Representatives, the Senior Lien Collateral Agent Agents and the First Senior Lien Claimholders may enforce the provisions of the First Lien Secured Loan Documents to which they are party and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion in compliance with any applicable law and without consultation with any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Junior Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent and any Subordinated other Junior Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated its Junior Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorLoan Party;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Senior Lien Obligations, or the rights of any First Senior Lien Representative, any Senior Lien Collateral Agent or the First Senior Lien Claimholders to exercise 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 Subordinated Junior Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Junior Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any Senior Lien Representative, any Senior Lien Collateral Agent or any other Senior Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Junior Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of Senior Lien Obligations;
(7) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by any Senior Lien Representative, any Senior Lien Collateral Agent or any other Senior Lien Claimholder, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action; or
(8) object to any proposed acceptance of Collateral by any Senior Lien Representative, Senior Lien Collateral Agent or other Senior Lien Claimholder pursuant to Section 9-620 of the UCC, in a manner not inconsistent with the provisions of this Agreement. The Subordinated Each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Junior Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy with respect to any Collateral (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Senior Lien Obligations has occurred, except as expressly permitted by Section 3.1(a)(1) to the extent such Junior Lien Representative or such Junior Lien Collateral Agent and Junior Lien Claimholders represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Senior Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Junior 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 First Senior Lien Obligations has occurred.
(d) Subject to Sections 3.1(a) and 3.1(c) and Section 6.3(b6.3(a):
(1) the Subordinated each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Junior Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Junior Lien Representative or such Junior Lien Collateral Trustee Agent and the Subordinated such Junior Lien Claimholders represented by it will not take any action that would hinder any exercise of remedies under the First Senior Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the CollateralCollateral that is prohibited hereunder, whether by foreclosure or otherwise;
(2) the Subordinated each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Junior Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Junior Lien Representative or the Subordinated such Junior Lien Collateral Agent and such Junior Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders seek Claimholder seeks to enforce or collect the First Senior Lien Obligations or the Liens securing the First Senior Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First any Senior Lien Representative, any Senior Lien Collateral Agent or First any other Senior Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Junior Lien ClaimholdersClaimholder; and
(3) the Subordinated each Junior Lien Representative and each Junior Lien Collateral Trustee Agent, for itself and on behalf of each other Junior Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Junior Lien Collateral Documents or any other Subordinated Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Senior Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)this Agreement, the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior 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 Subordinated Junior Lien Obligations in accordance with the terms of the Subordinated Junior Lien Loan Documents and applicable lawlaw (other than initiating in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to the Company); provided that in the event that any Subordinated Junior 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 Subordinated Junior Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Senior Lien Obligations) in the same manner as the other Liens securing the Subordinated Junior Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Junior Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupmentrecoupment against the Collateral) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Junior Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Lien Intercreditor Agreement (Franchise Group, Inc.)
Exercise of Remedies. (a) Until Each Second Lien Agent, for and on behalf of itself and each applicable Second Lien Secured Party, agrees that, from the date of effectiveness of this Agreement until the date upon which the Discharge of First Lien Obligations has shall have occurred, whether (i) except as otherwise provided in this Agreement, the First Lien Agents and the First Lien Secured Parties shall have the sole and exclusive right to enforce, collect or not realize on any Insolvency Collateral securing any First Lien Obligations or Liquidation Proceeding has been commenced by exercise any right or against the Company remedy with respect to any Collateral securing any First Lien Obligations and (ii) no Second Lien Agent or any other Grantor, Second Lien Secured Party will commence or continue the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise of any rights or secured creditor remedies with respect to any of the Collateral (including securing any Second Lien Obligations without the exercise written consent of any right each 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent Agents, and will not take, receive or accept any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder proceeds of any rights and remedies relating to the Collateral under the First securing any Second Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2Obligations.
(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 Notwithstanding Section 3.1(a) or any other Grantorprovision of this Agreement, the First nothing contained in this Agreement will be construed to prevent any Second Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
Secured Party from (ci) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file filing a claim or statement of interest with respect to the Subordinated any Second Lien Obligations; provided that an Obligations owed to it in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
, (2ii) take taking any action (not adverse to the priority status of the Liens of any First Lien Agent or any other First Lien Secured Party on the any Collateral securing any of the First Lien Obligations, Obligations or the rights of any First Lien Collateral Agent or the any other First Lien Claimholders Secured Party to commence or continue the exercise of any secured creditor remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on the on, any Collateral;
, (3iii) file filing any necessary or responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made filed by any person Person objecting to or otherwise seeking the disallowance of the claims claim or Lien of such Second Lien Agent or Second Lien Secured Party, (iv) filing any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law; provided that in the Subordinated event any Second Lien ClaimholdersAgent or any Second Lien Secured Party becomes a judgment lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor, including any claims secured by such judgment lien shall be subordinated to the Collateral, if any, in each case in accordance with Liens securing First Lien Obligations on the terms of same basis as the other Liens securing the Second Lien Obligations are so subordinated to the Liens securing First Lien Obligations under this Agreement; and
Agreement or (4v) vote voting on any plan Plan of reorganization, file Reorganization or filing any proof of claimclaim in any Insolvency or Liquidation Proceeding of any Grantor; provided that each Second Lien Agent, make other filings for and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated applicable Second Lien ClaimholderSecured Party, agrees that neither it will not nor any other Second Lien Secured Party shall take any action or receive vote against any Collateral or any proceeds Plan of Collateral Reorganization which provides for the satisfaction in connection with the exercise full in cash of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First all Second Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect on or prior to the Collateral is to hold a Lien on effective date of such Plan of Reorganization, in the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and case of each of clauses (i) through (v) above to the extent granted therein and to receive a share such action is not inconsistent with the express terms of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurredthis Agreement.
(dc) Subject to Sections 3.1(cSection 3.1(b) and Section 6.3(b):
above, (1i) the Subordinated Collateral Trusteeeach Second Lien Agent, for itself and on behalf of the Subordinated each applicable Second Lien ClaimholdersSecured Party, agrees that the Subordinated Collateral Trustee and the Subordinated no Second Lien Claimholders Agent nor any Second Lien Secured Party will not take any action that would hinder any exercise of remedies undertaken by any First Lien Agent or any First Lien Secured Party with respect to the Collateral or any other collateral under the First Lien Documents or is otherwise prohibited hereunderDocuments, including any sale, lease, exchange, transfer or other disposition of the CollateralCollateral or such other collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral Trusteeeach Second Lien Agent, for itself and on behalf of the Subordinated each applicable Second Lien ClaimholdersSecured Party, hereby waives any and all rights it or the Subordinated any Second Lien Claimholders Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Collateral Agent or the any First Lien Claimholders seek Secured Party seeks to enforce or collect the any First Lien Obligations or the Liens securing the First Lien Obligations granted in pursuant to any of the First Lien Collateral undertaken in accordance with this AgreementDocuments, regardless of whether any action or failure to act by or on behalf of the any First Lien Collateral Agent or any First Lien Claimholders Secured Party is adverse to the interest interests of any of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsSecured Parties.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien ClaimholdersSecured Parties:
(1i) will not exercise or seek to exercise any rights or remedies (including set-off and the right to credit bid their debt) with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreement, control account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder Secured Party is a partyparty or which runs for the benefit of the Second Lien Collateral Agent or any Second Lien Secured 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);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Secured Party, of any rights and remedies relating to the Collateral under the First Lien Documents Collateral or otherwise; andor
(3iii) subject to their rights under clause (a)(1a)(i) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the First Lien Collateral; provided that if an Event of Default (as defined in the Second Lien Credit Agreement (as in effect on the date hereof, or as amended in the form the First Lien Secured Parties, the Second Lien Secured Parties and the Borrower have agreed)) has occurred and for so long as such Event of Default is continuing, subject at all times to the provisions of Sections 2.1 and 4, after expiration of a 180-day period (the “Standstill Period”) which shall commence on the date of receipt by the First Lien Collateral Agent of the written notice of the Second Lien Collateral Agent of such Event of Default and written demand by the Second Lien Administrative Agent to the Company for the accelerated payment of all Second Lien Obligations (unless any Grantor is subject to an Insolvency or Liquidation Proceeding by reason of which such declaration and the making of such demand is stayed, in each case which case, commencing on the date of the commencement of such Insolvency or Liquidation Proceeding), the Second Lien Collateral Agent may take action to enforce its Liens on the Second Lien Collateral (including the institution of any action or proceeding with respect to its rights or remedies with respect to any Second Lien Collateral) upon 3 days’ prior written notice to the First Lien Collateral Agent (which notice may be given prior to the completion of such 180-day period, but not prior to the 150th day of such period), but only so long as the First Lien Collateral Agent is not diligently pursuing in good faith the exercise of its enforcement rights or remedies against, or diligently attempting to vacate any stay on enforcement of its Liens granted on, all the Collateral (including, commencement of any reasonable action to secure foreclose its Liens on such Collateral, any reasonable action to take possession of such Collateral or commencement of any reasonable legal proceedings or actions against or with respect to such Collateral); after the Subordinated Lien Obligations expiration of the Subordinated Standstill Period and after the Second Lien Claimholders attach Collateral Agent has provided at least five days’ prior written notice to the proceeds thereof subject First Lien Collateral Agent (which may occur during the Standstill Period as provided above) that it intends to commence action to enforce its Lien and provided that neither the First Lien Collateral Agent nor the First Lien Secured Parties have commenced in good faith any action to enforce their Lien on any Collateral (and are continuing to pursue such actions in good faith) within five days after receipt of such notice, in the event that and for as long as the Second Lien Collateral Agent shall have commenced any actions to enforce its Lien on all or any substantial proportion of any Collateral to the relative priorities described extent permitted hereunder and is diligently pursuing such actions, neither the First Lien Collateral Agent nor the First Lien Secured Parties shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement are complied with in Section 2all material respects.
(b) Until Except as set forth in (a) above or 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 First Lien Claimholders shall Secured Parties shall, except as otherwise expressly provided herein, have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that, the Secured Party. The First Lien securing the Subordinated Lien Obligations Collateral Agent shall remain on the proceeds of such Collateral released or disposed of subject provide at least five days notice to the relative priorities described in Section 2Second Lien Collateral Agent of its intent to exercise and enforce its rights or remedies with respect to the Collateral. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder Secured Party may:
(1i) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) 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 Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3iii) 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 Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) 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 Subordinated Second Lien Obligations and the Collateral;
(v) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i);
(vi) present a cash bid at any Section 363 hearing or with respect to any other Collateral disposition;
(vii) offer to provide and provide DIP financing under Section 364; provided, however, that (i) any such DIP financing shall not impair the rights of the First Lien Lenders, the First Lien Collateral Agent, or the First Lien Secured Parties other than with respect to the superpriority lien status of any liens granted to the DIP Financing lender, and (ii) any such DIP financing proposal shall be consistent with the applicable provisions of Section 6 hereof; and
(viii) take any other action not specifically prohibited hereby. The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge in violation of First Lien Obligations has occurredthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections Section 3.1(a), 6.3(b) Section 6 and this Section 3.1(c), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):6:
(1i) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated Second Lien Claimholders Secured Parties may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders Secured Parties is adverse to the interest of the Subordinated Second Lien ClaimholdersSecured Parties so long as done in compliance with the Bankruptcy Code; and
(3iii) the Subordinated Second Lien Collateral Trustee Agent, for itself and on behalf of the Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as otherwise specifically set forth in Sections 3.1(a) and (d), the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d)) and Section 4, nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Secured Parties of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Secured Parties of rights or remedies as a secured creditor (including set-off and recoupmentoff) 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 Secured Parties may have with respect to the First Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) 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 any Borrower or any other Grantor, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1) are prohibited from exercising, and will not exercise or seek to exercise exercise, any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Second Lien Collateral Trustee Agent or any Subordinated 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 or remedies after the passage of a period of at least 180 days has elapsed since the later of: (A) the date on which the Second Lien Collateral Agent declares the existence of any Event of Default under any Second Lien Loan Documents and demands the repayment of all the principal amount of any Second Lien Obligations; and (B) the date on which the First Lien Collateral Agent receives notice from the Second Lien Collateral Agent of such declaration of an Event of Default, (the “Standstill Period”); provided, further, however, that 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 First Lien Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2) are prohibited from contesting, protesting or objecting, and will not contest, protest or object object, to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(11) aboveabove and except as may be permitted in Section 3.1(c), will not object to the forbearance by the 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 Collateral; provided, that, in each the case so long as of clauses (1), (2) and (3) above, the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders shall attach to any proceeds resulting from actions taken by the First Lien Collateral Agent or any First Lien Claimholder in accordance with this Agreement after application of such proceeds thereof subject to the relative priorities described in Section 2extent necessary to meet the requirements of a Discharge of First Lien Obligations.
(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 any Borrower or any other Grantor, subject to Section 3.1(a)(l), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided thatprovided, that the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company any Borrower or any other Grantor;
(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, 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(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 inconsistent with 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 Subordinated Second Lien Obligations and the Collateral; and
(6) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1). The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge creditor in violation of First Lien Obligations has occurredthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1 (a) and (c) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Collateral Trustee it and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or that is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
(e) Except as otherwise specifically set forth in Sections 3.1(a) and (d), the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company Borrowers or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupmentoff) 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 (IPC Systems Holdings Corp.)
Exercise of Remedies. (a) Until So long as the Discharge of 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) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1A) from the date hereof until the occurrence of the Second Lien Enforcement Date, will not exercise commence or maintain, or seek to exercise commence or maintain any rights or remedies Enforcement Action with respect to any Lien held by it under the Second Lien Collateral (including the exercise of any right of setoff Documents or any right under any lockbox agreement, account control agreement, landlord waiver other Second Lien Loan Document or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)otherwise;
(2B) will not contest, protest or object to, or otherwise interfere with, hinder, limit, prohibit or delay, (or take any action that could reasonably be expected to hinder, delay, limit or prohibit) in any foreclosure proceeding manner (whether by judicial proceedings or action brought otherwise, including without limitation the filing or commencement of or joining any petition commencing any Insolvency or Liquidation Proceeding) any Enforcement Action by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by Claimholder, provided that the First respective interests of the Second Lien Claimholders attach to the proceeds thereof, subject to the relative priorities described in Section 2 and Section 4;
(C) subject to the rights of the Second Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1i)(A) above, will not contest, protest or object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action Enforcement Action;
(D) have no right to (i) direct either the First Lien Collateral Agent, the Control Agent, or any other First Lien Claimholder to exercise any right, remedy or power with respect to the Collateral or pursuant to the First Lien Loan Documents or (ii) consent or object to the exercise by the First Lien Collateral Agent, the Control Agent, or any other First Lien Claimholder of any rights right, remedy or remedies relating power with respect to the Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach Collateral or pursuant to the proceeds thereof subject First Lien Loan Documents or to the relative priorities timing or manner in which any such right is exercised or not exercised (or, to the extent they may have any such right described in Section 2.this clause (D) as a junior lien creditor or otherwise, they hereby irrevocably waive such right);
(bE) Until will not oppose or otherwise contest any motion for relief from the Discharge automatic stay or from any injunction against foreclosure or enforcement of Second Priority Liens made by any holder of First Lien Obligations has occurredor the First Lien Collateral Agent in any insolvency or liquidation proceedings;
(F) will not oppose or otherwise contest any lawful exercise by any holder of First Lien Obligations or the First Lien Collateral Agent of the right to credit bid First Lien Obligations at any sale in foreclosure of Liens securing First Lien Obligations;
(G) will not oppose or otherwise contest any other request for judicial relief made in any court by any holder of First Lien Obligations or the First Lien Collateral Agent relating to the lawful enforcement of any First Priority Lien;
(H) will not challenge the validity, whether enforceability, perfection or priority of the Liens securing First Lien Obligations; and
(I) will not any Insolvency or Liquidation Proceeding has been commenced by or against object to the Company manner in which the First Lien Collateral Agent or any other Grantorholder of First Lien Obligations may seek to enforce or collect the First Lien Obligations or the Liens securing First Lien Obligations, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other holder of First Lien Obligations is, or could be, adverse to the interests of the Second Lien Holders, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshaling, appraisal, valuation or other similar right that may be available under applicable law with respect to Collateral or any similar rights a junior secured creditor may have under applicable law.
(ii) subject to Section 5.1, the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) commence and, subject to Section 5.1if applicable, to maintain an Enforcement Action and, in connection with such Enforcement Action, make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that:
(A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, may file claims or statements of interest with respect to all or any portion of the Second Lien Obligations,
(B) the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, agrees that it will not retain any Collateral or any proceeds of Collateral in connection with any Enforcement Action against any Collateral, and that any Collateral or proceeds taken or received by it in connection with any Enforcement Action will be applied in accordance with Section 4.1 unless and until the Discharge of First Lien Obligations has occurred, other than the receipt of reorganization securities as expressly provided in Section 6.8;
(C) in any Insolvency or Liquidation Proceeding, the Second Lien Collateral Agent and 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 Collateral Agent or Second Lien Claimholders, including without limitation, actions seeking to avoid or challenge any Liens upon the Collateral or actions against the Second Lien Claimholders, if any, in each case in accordance with the terms of this Agreement;
(D) in any Insolvency or Liquidation Proceeding, the Second Lien Collateral Agent and 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement;
(E) in any Insolvency or Liquidation Proceeding, the Second Lien Collateral Agent and Second Lien Claimholders shall be entitled to vote on any plan of reorganization, composition or arrangement (including, without limitation, vote to accept or reject any plan of partial or complete liquidation, reorganization, arrangement, composition or extension) to the extent consistent with the provisions hereof with respect to the Second Lien Obligations and the Collateral; provided, however, that the Second Lien Claimholders agree not to vote in favor of any plan of reorganization, liquidation, composition or arrangement that contests the attachment, perfection, priority, or validity of the Liens securing the Subordinated First Lien Obligations shall remain or the provisions or application of hereof if such plan is not supported by the First Lien Claimholders;
(F) the Second Lien Collateral Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date;
(G) the Second Lien Collateral Agent may take any action (not adverse to 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 and not otherwise inconsistent with the terms of this Agreement) in order to create, perfect, preserve or protect its Lien on the Collateral;
(H) the Second Lien Collateral Agent may join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by First Lien Collateral Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Second Lien Claimholder may receive any proceeds thereof unless expressly permitted herein;
(I) the Second Lien Collateral Agent or any Second Lien Claimholder may bid for or purchase Collateral at any public, private, or judicial foreclosure upon such Collateral initiated by any First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations;
(J) the Second Lien Collateral released Agent or disposed any Second Lien Claimholder may take any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not violate or breach) an obligation under the Second Lien Documents, so long as (i) such action is not accompanied by a claim for monetary damages or a collection action, and (ii) such action does not, in any material respect, restrain, hinder, delay or otherwise interfere with the exercise of subject remedies by the First Lien Collateral Agent, the First Lien Lenders, or the Control Agent;
(K) the Second Lien Collateral Agent or any Second Lien Claimholder may take any action to the relative priorities described extent necessary to prevent the running of any applicable statute of limitations or similar restriction on claims, or to assert a compulsory cross-claim or counterclaim against any Grantor, so long as such action is not accompanied by a collection action;
(L) the Second Lien Collateral Agent or any Second Lien Claimholder may inspect or appraise the Collateral or to receive information or reports concerning the Collateral, in Section 2each case in accordance with the terms of the Second Lien Documents and applicable law; and
(M) the Second Lien Collateral Agent or any Second Lien Claimholder may enforce the terms of any subordination agreement with respect to any Indebtedness subordinated to the Second Lien Obligations so long as such enforcement is consistent with the terms hereof and not accompanied by a claim for monetary damages or a collection action. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 the First Lien Collateral Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 The Second Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that at any time prior to the Discharge of First Lien Obligations and after (a) the commencement of any Insolvency or Liquidation Proceeding in respect of any Grantor or (b) the Second Lien Collateral Agent and the Second Lien Claimholders have received written notice from the First Lien Collateral Agent at the direction of an Act of Required Debtholders stating that (i) any First Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (ii) the holders of Liens securing First Lien Debt have become entitled under any First Lien Document to and desire to enforce any or all of the First Priority Liens by reason of a default under such First Lien Documents, it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral, and that any Collateral in its capacity as a creditor, unless and until or such proceeds taken or received by it upon demand by the Discharge of First Lien Obligations has occurredCollateral Agent will be paid over to the First Lien Collateral Agent pursuant to Section 4.2, except as expressly provided in Section 6.8. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c3.1(a)(ii), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred or receive reorganization securities as expressly provided in Section 6.8, in each case, in accordance with the terms of the Second Lien Documents and applicable law and otherwise take actions with respect to the Collateral permitted by this Agreement. All proceeds of Collateral received by the Second Lien Collateral Agent or Second Lien Claimholders not in violation of this Agreement will be received by the Second Lien Collateral Agent or Second Lien Claimholders, as applicable, free from the First Priority Liens and all other Liens except the Second Priority Liens.
(dc) Subject to Sections 3.1(cthe proviso to clauses (i) and (ii) of Section 6.3(b):
(1) 3.1(a), the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that (i) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderLoan Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise with respect to the First Lien Collateral to object to the manner or order in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or the First Lien Claimholders is adverse to the interest any of the Subordinated Second Lien Collateral Agent or the Second Lien Claimholders; and.
(3d) the Subordinated The Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth The Second Lien Collateral Agent hereby acknowledges and agrees that it will not institute any suit or other proceeding or assert in Sections 3.1(a) and (d)any suit, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders may exercise rights and remedies as unsecured creditors Insolvency or Liquidation Proceeding or other proceeding any claim against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as Collateral Agent, the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d)Control Agent, nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated First Lien Claimholders Claimholder seeking damages from or other relief by way of the required payments of interestspecific performance, principal injunction or otherwise, with respect to, and other amounts owed in respect of the Subordinated no First Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 Claimholder, the First Lien Collateral Agent or the First Lien Claimholders may have Control Agent shall be liable for, any action taken or omitted to be taken by any of them with respect to the Collateral or pursuant to the First Lien CollateralLoan Documents, other than as expressly set forth in Section 3.2(c).
Appears in 1 contract
Sources: Intercreditor Agreement (AMERICAN EAGLE ENERGY Corp)
Exercise of Remedies. (a) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany, the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated Junior Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Collateral Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that any one or more of the Junior Lien Representative and the Junior Lien Collateral (including the Agent may, in accordance with any relevant Junior Lien Security Document, but is not required to, commence a Collateral Enforcement Action or otherwise exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (including i) the date on which a Junior Lien Representative declared the existence of any action Event of foreclosureDefault under (and as defined in) any Junior Lien Documents and demanded the repayment of all the principal amount of any Junior Lien Obligations thereunder; and (ii) the date on which the Senior Lien Representatives received notice from such Junior Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Junior Lien Representative, any Junior Lien Collateral Agent or any Junior Lien Claimholder exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, any Senior Lien Representative, any Senior Lien Collateral Agent or any applicable Senior Lien Claimholder(s) shall have commenced and is pursuing a Collateral Enforcement Action or other exercise of its or their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt written notice of such exercise to be given to the Junior Lien Representative);
(2) will not contest, protest or object to (i) any foreclosure proceeding or action brought by the First any Senior Lien Representative, any Senior Lien Collateral Agent or any First Senior Lien Claimholder or (ii) any other exercise by the First any Senior Lien Representative, any Senior Lien Collateral Agent or any First Senior Lien Claimholder of any rights and remedies relating to the Collateral under the First Senior Lien Documents or otherwiseotherwise (including any Collateral Enforcement Action initiated by or supported by any Senior Lien Representative, any Senior Lien Collateral Agent or any Senior Lien Claimholder); and
(3) subject to their rights under clause (a)(1) above, above will not object to the forbearance by the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any Senior Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any Senior Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of Senior Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 25.1 hereof and applicable law.
(b) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany, subject to Section 4.1(a)(1), the First Senior Lien Representatives, the Senior Lien Collateral Agent Agents and the First Senior Lien Claimholders shall have the exclusive right to (i) commence and maintain a Collateral Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt, except that Junior Lien Representatives shall have the credit bid rights set forth in Section 4.1(c)(6)), and (ii) and, subject to Section 5.15.3, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholder; provided that, the in each case, any proceeds received by any Senior Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of Senior Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 25.1 hereof and applicable law. In commencing or maintaining any Collateral Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Senior Lien Representatives, Senior Lien Collateral Agent Agents and the First Senior Lien Claimholders may enforce the provisions of the First Senior Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretiondiscretion in compliance with any applicable law and without consultation with any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Junior Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws Law of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent, in accordance with any relevant Junior Lien Security Document, and any Subordinated other Junior Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Junior Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Senior Lien Obligations, or the rights of any First Senior Lien Representative, any Senior Lien Collateral Agent or the First Senior Lien Claimholders to exercise 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 Subordinated Junior Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Junior Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder, may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 4.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any Senior Lien Representative, any Senior Lien Collateral Agent or any other Senior Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Junior Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of Senior Lien Obligations. The Subordinated Each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Junior Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Senior Lien Obligations has occurred, except in connection with any foreclosure that is expressly permitted by Section 4.1(a)(1) to pursue after the expiration of the Standstill Period to the extent such Junior Lien Representative or such Junior Lien Collateral Agent and Junior Lien Claimholders represented by it are permitted to retain the proceeds thereof in accordance with Section 5.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Senior Lien Obligations has occurred, except as expressly provided in Sections 3.1(a4.1(a), 6.3(b) and this Section 3.1(c4.1(c), the sole right of the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Junior 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 First Senior Lien Obligations has occurred.
(d) Subject to Sections 3.1(c4.1(a) and (c) and Section 6.3(b):
(1) the Subordinated each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Junior Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Junior Lien Representative or such Junior Lien Collateral Trustee Agent and the Subordinated such Junior Lien Claimholders represented by it will not take any action that would hinder any exercise of remedies under the First Senior Lien Documents or that is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Junior Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Junior Lien Representative or the Subordinated such Junior Lien Collateral Agent and such Junior Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders seek Claimholder seeks to enforce or collect the First Senior Lien Obligations or the Liens securing the First Senior Lien Obligations granted in any of the First Senior Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First any Senior Lien Representative, any Senior Lien Collateral Agent or First any other Senior Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Junior Lien ClaimholdersClaimholder; and
(3) the Subordinated each Junior Lien Representative and each Junior Lien Collateral Trustee Agent, for itself and on behalf of each other Junior Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Junior Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First any other Senior Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Senior Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) this Agreement, Article II of the Initial Junior Lien Indentures and (d)the Note Subordination Agreements, the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior 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 Subordinated Junior Lien Obligations in accordance with the terms of the Subordinated Junior Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to the Company); provided that in the event that any Subordinated Junior 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 Subordinated Junior Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Senior Lien Obligations) in the same manner as the other Liens securing the Subordinated Junior Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a4.1(a) and (d), and without limiting Article II of the Initial Junior Lien Indentures or the Note Subordination Agreements, nothing in this Agreement shall prohibit the receipt by the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Junior Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Junior Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First any Senior Lien Representative, any Senior Lien Collateral Agent or the First other Senior Lien Claimholders Claimholder may have with respect to the First Senior Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) Until So long as the Discharge of First Lien ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company one or more of any Borrower or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) None of the Term Representatives nor any of the other Term Secured Parties (x) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any ABL Priority Collateral (including the exercise of any right of setoff or any right under any lockbox agreement, agreement or account control agreementagreement (but excluding such lockbox or deposit account that does not receive proceeds of ABL Priority Collateral), landlord waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority Collateral to which the Subordinated Collateral Trustee Term Representatives or any Subordinated Lien Claimholder other Term Secured Party is a party) or institute or commence or join with any Person (other than the ABL Agent and the other ABL Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution);
; provided, however, that the Designated Term Representative may exercise any or all such rights after the passage of a period of one hundred twenty (2120) days from the date of delivery of a notice in writing to the ABL Agent of the Designated Term Representative’s intention to exercise its right to take such actions which notice shall also state that an Event of Default is continuing under the Term Documents and Term Obligations have been accelerated as a result of such Event of Default (the “Term Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the Designated Term Representative nor any other Term Secured Party will exercise any rights or remedies with respect to any ABL Priority Collateral if, notwithstanding the expiration of the Term Standstill Period, the ABL Agent or the other ABL Secured Parties shall have commenced the exercise of any of their rights or remedies with respect to all or any material portion of the ABL Priority Collateral (prompt notice of such exercise to be given to the Designated Term Representative) and are pursuing in good faith the exercise thereof or are stayed from pursuing such exercise, including as a result of an Insolvency or Liquidation Proceeding, (y) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral ABL Agent or any First Lien Claimholder other ABL Secured Party with respect to, or any other exercise by the First Lien Collateral ABL Agent or any First Lien Claimholder other ABL Secured Party of any rights and remedies relating to to, the ABL Priority Collateral under the First Lien ABL Documents or otherwise; and
, and (3z) subject to their its rights under clause (a)(1i)(x) above, will not object to the forbearance by the First Lien Collateral ABL Agent or the First Lien Claimholders other ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case of clauses (x), (y) and (z) above, so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Lien Claimholders Term Secured Parties attach to the proceeds Proceeds thereof subject to the relative priorities described in Section 2.
(b3.1; provided, however, that nothing in this Section 3.2(a) Until the Discharge of First Lien Obligations has occurred, whether or not shall be construed to authorize any Insolvency or Liquidation Proceeding has been commenced by or against the Company Term Representative or any other Grantor, Term Secured Party to sell any ABL Priority Collateral free of the First Lien Collateral of the ABL Agent or any other ABL Secured Party; and
(ii) the ABL Agent on behalf of itself and the First Lien Claimholders other ABL Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositionDisposition of, or restrictions with respect to to, the ABL Priority Collateral without any consultation with or the consent of any of the Subordinated Collateral Trustee Designated Term Representative or any Subordinated Lien Claimholderother Term Secured Party; provided provided, that, :
(A) the Lien Term Representatives may take any action (not adverse to the prior Liens on the ABL Priority Collateral securing the Subordinated ABL Obligations, or the rights of the ABL Agent or any other ABL Secured Parties to exercise remedies in respect thereof) in order to preserve or protect its Lien Obligations shall remain on the proceeds ABL Priority Collateral in accordance with applicable law and in a manner not in contravention of such Collateral released the terms of this Agreement (including, but not limited to, any of the provisions of Section 3.5);
(B) the Term Secured Parties shall be entitled to file any necessary or disposed 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 subject the claims or Liens of the Term Secured Parties, including any claims secured by the ABL Priority Collateral, if any, in each case in accordance with applicable law and in a manner not in contravention of the terms of this Agreement (including, but not limited to, any of the provisions of Section 3.5);
(C) the Term 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with applicable law and not in contravention of the terms of this Agreement (including, but not limited to, any of the provisions of Section 3.5);
(D) the Term Secured Parties 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 a manner not in contravention of the terms of this Agreement; and
(E) the Designated Term Representative or any other Term Secured Party may exercise any of its rights or remedies with respect to the relative priorities described in Section 2ABL Priority Collateral after the termination of the Term Standstill Period to the extent permitted by clause (i)(x) above. In exercising rights and remedies with respect to the ABL Priority Collateral, the First Lien Collateral ABL Agent and the First Lien Claimholders other ABL Secured Parties may enforce the provisions of the First Lien 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 ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or dispositionDisposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeEach Term Representative, on behalf of itself and each Subordinated Lien Claimholderthe other Term Secured Parties that it represents, agrees that it will not take or receive any ABL Priority Collateral or any proceeds Proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentsetoff) with respect to any ABL Priority Collateral in its capacity as a creditor, unless and until the Discharge of First Lien ABL Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x), or in the proviso in clause (ii), of Section 3.2(a). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien ABL Obligations has occurred, except as expressly provided in Sections 3.1(athe first proviso in clause (i)(x), 6.3(b) and this or in the proviso in clause (ii), of Section 3.1(c3.2(a), the sole right of the Subordinated Collateral Trustee Term Representatives and the Subordinated Lien Claimholders other Term Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Subordinated Lien Collateral Term 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 First Lien the ABL Obligations has occurredoccurred in accordance with the terms hereof, the ABL Documents and applicable law.
(dc) Subject to Sections 3.1(cthe first proviso in clause (i)(x) of Section 3.2(a), the proviso in clause (ii) of Section 3.2(a) and Section 6.3(b3.4(a):
(1i) the Subordinated Collateral Trusteeeach Term Representative, for itself and on behalf of the Subordinated Lien Claimholdersother Term Secured Parties that it represents, agrees that the Subordinated Collateral Trustee such Term Representative and the Subordinated Lien Claimholders other Term Secured Parties that it represents will not take any action that would hinder any exercise of remedies under the First Lien ABL Documents with respect to the ABL Priority Collateral or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition Disposition of the ABL Priority Collateral, whether by foreclosure or otherwise;, and
(2ii) the Subordinated Collateral Trusteeeach Term Representative, for itself and on behalf of the Subordinated Lien Claimholdersother Term Secured Parties that it represents, hereby waives any and all rights it or the Subordinated Lien Claimholders other Term Secured Parties may have as a junior lien creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in which the First Lien Collateral ABL Agent or the First Lien Claimholders other ABL Secured Parties seek to enforce or collect the First Lien ABL Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral ABL Agent or First Lien Claimholders the other ABL Secured Parties is adverse to the interest of the Subordinated Lien Claimholders; andTerm Secured Parties in the ABL Priority Collateral.
(3d) the Subordinated Collateral Trustee Each Term Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Term Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral ABL Agent or the First Lien Claimholders other ABL Secured Parties with respect to the ABL Priority Collateral as set forth in this Agreement and the First Lien ABL Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until So long as the Discharge of First Lien 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) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1A) from the date hereof until the occurrence of the Second Lien Enforcement Date (such period, the “Standstill Period”), will not exercise or seek to exercise any rights or remedies (including any right of set-off or recoupment) with respect to any Collateral (including including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control or collection agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder is a party) or institute or commence (or join with any other Person in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including, without limitation, any Insolvency or Liquidation Proceeding) with respect to such rights any Lien held by it under the Second Lien Collateral Documents or remedies (including any action of foreclosure)other Second Lien Loan Document or otherwise;
(2B) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Claimholder, of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise, including, but not limited to, any motion by the First lien Collateral agent to sell the Collateral pursuant to Section 363 of the Bankruptcy Code, provided that the respective interests of the Second Lien Claimholders attach to the proceeds thereof, subject to the relative priorities described in Article II; provided, however, that this Section 3.01(B) shall constitute consent by the Second Lien Collateral Agent and the Second Lien Claimholders pursuant to Section 363(f) of the Bankruptcy Code to the Section 363 sale of any or all of the Collateral; and
(3C) subject to their the rights of the Second Lien Collateral Agent under clause (a)(1i)(A) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof ; and
(ii) subject to the relative priorities described in Section 2.
(b) Until 5.01, until the Discharge of the First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorObligations, the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided provided, that
(A) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Grantor, the Second Lien Collateral Agent may file a claim or statement of interest with respect to the Second Lien Obligations;
(B) the Second Lien Collateral Agent may take any action (not adverse to the Liens on the Collateral securing the Subordinated 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 preserve or protect its Lien on the Collateral;
(C) the Second Lien Claimholders shall be entitled to 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 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 Debtor Relief Law or applicable non-bankruptcy law;
(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;
(F) the Second Lien Claimholders shall remain be entitled, in any Insolvency or Liquidation Proceeding, to vote on the proceeds any plan of such Collateral released or disposed of subject reorganization, to the relative priorities described in Section 2extent consistent with the provisions hereof; and
(G) the Second Lien Collateral Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the First Lien Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine advisable in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them the First Lien Collateral Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Debtor Relief Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 The Second Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated the Second Lien Claimholder, Claimholders) agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral, and that any Collateral in its capacity as a creditoror proceeds taken or received by it will be paid over to the First Lien Collateral Agent pursuant to Section 4.02, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in Section 3.01(a)(ii) and Section 6.07. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this the proviso in Section 3.1(c3.01(a)(ii), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 the First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Loan Documents and applicable Law.
(dc) Subject to Sections 3.1(cthe proviso in Section 3.01(a)(ii) and Section 6.3(b):
6.01, (1i) the Subordinated Second Lien Collateral Trustee, for itself and Agent (on behalf of itself and the Subordinated Second Lien Claimholders, ) agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderLoan Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Second Lien Collateral Trustee, for itself and Agent (on behalf of itself and the Subordinated Second Lien Claimholders, ) hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner or order in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Collateral.
(d) The Second Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 (Prospect Medical Holdings Inc)
Exercise of Remedies. (a) 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 Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)Collateral;
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above, will not object to (and will waive any and all claims with respect to) the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debtdebt (including debt related to any DIP Financing) andin any sale, except that the Second Lien Representative shall have the credit bid rights set forth in Section 3.1(c)(5)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent or any Subordinated other Second Lien ClaimholderSecured Party; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of any First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 hereof. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Representative, the Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties to exercise 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 Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) subject to Section 6.1(b), vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Representative, the Second Lien Collateral Agent or any other Second Lien Secured Party may be inconsistent with the provisions of this Agreement;
(5) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations; and
(6) object to any proposed acceptance of Collateral by a First Lien Representative, a First Lien Collateral Agent or First Lien Secured Party pursuant to Section 9- 620 of the UCC. The Subordinated Second Lien Representative and the Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Secured Parties represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b3.1(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and Section 6.3(b(c):
(1) the Subordinated Second Lien Representative and the Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders Secured Parties represented by it will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Second Lien Representative and the Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, hereby waives any and all rights such Second Lien Representative or such Second Lien Collateral Agent or such Second Lien Secured Parties represented by it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the other First Lien Claimholders seek Secured Party seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or other First Lien Claimholders Secured Party is adverse to the interest of the Subordinated any Second Lien ClaimholdersSecured Party; and
(3) the Subordinated Second Lien Representative and the Second Lien Collateral Trustee Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Secured Party with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(athis Agreement, the Second Lien Representative, the Second Lien Collateral Agent (each at the written direction of the Required Holders under the Indenture) and (d), the Subordinated Collateral Trustee and the Subordinated other Second Lien Claimholders Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Secured Party of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Secured Party of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Secured Party of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the other First Lien Claimholders Secured Party may have with respect to the First Lien Collateral.
(g) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement.
Appears in 1 contract
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company or any other GrantorObligors, each of the Subordinated Second Lien Collateral Trustee Agents, for itself and the Subordinated on behalf of its Related Second Lien Claimholders, hereby agrees that it and its Related Second Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Collateral (including the exercise of or institute or commence, or join with any right of setoff Person in instituting or commencing, any other Enforcement Action or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any other action or proceeding with respect to such rights or remedies (including any action of foreclosure, exercise of a power of sale, enforcement, collection or execution and any Insolvency or Liquidation Proceeding); provided that the Directing Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days since the Directing First Lien Collateral Agent shall have received notice from the Directing Second Lien Collateral Agent with respect to the acceleration by the relevant Second Lien Claimholders of the maturity of all then outstanding Second Lien Obligations (and requesting that Enforcement Action be taken with respect to the Collateral) so long as the applicable “event of default” shall not have been cured or waived (or the applicable acceleration rescinded) (the “Standstill Period”); provided further that notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agents or any other Second Lien Claimholders exercise any rights or remedies with respect to any Collateral or institute or commence, or join with any Person (other than the Directing First Lien Collateral Agent) in instituting or commencing, any other Enforcement Action or any other action or proceeding with respect to such rights or remedies, if, notwithstanding the expiration of the Standstill Period, either (A) the Directing First Lien Collateral Agent or any other First Lien Claimholder shall have commenced and be diligently pursuing (or shall have sought or requested and be diligently pursuing relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and the pursuit of) an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (with any determination of which Collateral to proceed against, and in what order, to be made by the Directing First Lien Collateral Agent or such First Lien Claimholders in their reasonable judgment) or (B) any of the Obligors is then a debtor in any Insolvency or Liquidation Proceeding; provided further that the Standstill Period shall be tolled for any period that the Directing First Lien Collateral Agent or the other First Lien Claimholders are stayed from exercising remedies with respect to the Collateral;
(2) will not contest, protest or object to any Enforcement Action or any other foreclosure proceeding or action or exercise of a power of sale brought by the Directing First Lien Collateral Agent or any other First Lien Claimholder or any other exercise by the Directing First Lien Collateral Agent or any other First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and;
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the Directing First Lien Collateral Agent or the other First Lien Claimholders from bringing or pursuing any Enforcement Action or any other foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted Directing First Lien Collateral Agent in excess of those necessary to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the achieve a 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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case are distributed in accordance with the terms of this AgreementSection 4.1; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral Collateral, or any proceeds of Collateral or payment with respect to any Collateral, in connection with the any Enforcement Action or any other exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditorcreditor or in connection with any insurance policy award or any award in a condemnation or similar proceeding (or deed in lieu of condemnation) with respect to any Collateral, in each case unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure or exercise of a power of sale expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Collateral Agent and its Related Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.1. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a3.1(a)(1), 6.3(b3.1(c) and this Section 3.1(c6.3(b), the sole right of the Subordinated each Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders with respect to the Collateral (other than inspection, monitoring, reporting and similar rights provided for in the Second Lien Financing Documents) is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any First Lien Obligor, subject to Sections 3.1(a)(1), 3.1(c) and 6.3(b), the First Lien Collateral Agents and the other First Lien Claimholders (and any receiver appointed by any of them) shall have the exclusive right to commence and maintain an Enforcement Action or otherwise exercise any rights and remedies (including set-off, recoupment and the right to “credit bid” their debt, except that the Second Lien Collateral Agents shall have the “credit bid” rights set forth in Section 3.1(c)(7)), and make determinations regarding the release, Disposition, or restrictions with respect to the Collateral, in each case without any consultation with or the consent of any Second Lien Collateral Agent or any other Second Lien Claimholder; provided that any proceeds received by any First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agents and the other First Lien Claimholders (and any receiver appointed by any of them) may enforce the provisions of the First Lien Documents and exercise rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent or receiver appointed by them to sell or otherwise Dispose of Collateral upon foreclosure, exercise of a power of sale or other enforcement action or proceeding to incur expenses in connection with such sale or other Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, each Second Lien Collateral Agent and any other Second Lien Claimholder may:
(1) file a claim, proof of 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 any of the Second Lien Obligors;
(2) take any action in order to create, perfect, preserve or protect (but not enforce) its Lien on the Collateral to the extent (A) 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 other First Lien Claimholders to exercise rights and remedies in respect thereof, and (B) not otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 5.1;
(3) 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 of the Second Lien Claimholders, including any claims or Liens secured by the Collateral, if any, in each case to the extent not inconsistent with the terms of this Agreement;
(4) subject to clause (e) below, file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Obligors arising under either the applicable Debtor Relief Law or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement, or as may otherwise expressly be consented to by the Directing First Lien Collateral Agent;
(5) vote on any plan of reorganization, plan of arrangement, plan of compromise or arrangement, proposal or similar dispositive restructuring plan, arrangement, compromise or liquidation, make other filings and make any arguments and motions with respect to the Second Lien Obligations and the Collateral that are, in each case, in accordance with the terms of this Agreement; provided that no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Collateral Agent or any other Second Lien Claimholder may be inconsistent with the terms of this Agreement;
(6) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(7) bid for or purchase any Collateral at any public, private or judicial foreclosure or exercise of a power of sale upon such Collateral initiated by the Directing First Lien Collateral Agent or any other First Lien Claimholder, or any sale of any Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
(d) Subject to Sections 3.1(a)(1), 3.1(c) and Section 6.3(b):
(1) the Subordinated ), each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated its Related Second Lien Claimholders, :
(1) agrees that the Subordinated Collateral Trustee it and the Subordinated its Related Second Lien Claimholders will not take any action that would hinder hinder, delay, limit or prohibit any exercise of rights or remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer collection or other disposition Disposition of the any Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien securing any First Lien Obligations or any First Lien 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;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated its Related Second Lien Claimholders may have as a junior lien Lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the First Lien Collateral Agent Agents or the other First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementObligations, regardless of whether any action or failure to act by or on behalf of the any First Lien Collateral Agent or any other First Lien Claimholders is adverse to the interest of the Subordinated any Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Collateral Agent or the other First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated The Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Obligors that has have guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Obligor, prior to the termination of the Standstill Period); provided that (i) any such exercise shall not be inconsistent with the terms of this Agreement (including Section 6) and (ii) in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing . Nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of principal, premium, interest, principal fees and other amounts owed in respect of due under the Subordinated Second Lien Obligations Documents so long as such receipt is not the direct or indirect result of the exercise by the Subordinated a Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention respect 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: Credit Agreement (Certara, Inc.)
Exercise of Remedies. (a) 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 either Borrower or any other Grantor, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1i) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to any the Collateral (including for the avoidance of doubt, other than electing or otherwise imposing a default rate of interest to the extent consistent with Section 5.3); provided that, if an Event of Default (as defined in the Second Lien Credit Agreement) has occurred under the Second Lien Credit Agreement, the Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least one hundred twenty (including 120) days since the later of (A) the date on which the Second Lien Collateral Agent declared the existence of any action Event of foreclosureDefault under (and as defined in) the Second Lien Loan Agreement and (B) the date on which the First Lien Collateral Agent received notice from the Second Lien Collateral Agent of such declarations of such Event of Default (the “Standstill Period”); provided, further, that 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 the First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent); provided, further, in the event that as of any day during such one hundred twenty (120) day period, no Event of Default (as defined in the Second Lien Loan Agreement) is continuing under the Second Lien Loan Agreement, then the Standstill Period shall be deemed not to have commenced;
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by the First Lien Collateral Agent or any First Lien Claimholder); and
(3iii) subject to their rights under clause (a)(1) aboveSection 3.1(a)(i), will not object to the forbearance by the 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 Collateral, in each case so long as any cash proceeds received by the Liens granted to secure the Subordinated First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described Collateral Agent are distributed in accordance with Section 24.1 and applicable law.
(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 either Borrower or any other Grantor, subject to Section 3.1(a)(i), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that the Second Lien Collateral Agent shall have the credit bid rights set forth in Section 3.1(c)(vi)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that, that any cash proceeds received by the First Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described Agent are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Collateral Agent or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1i) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company either Borrower or any other Grantor;
(2ii) 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 the First Lien Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3iii) 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that arewith respect to the Second Lien Obligations and the Collateral, in each case, in accordance with unless specificially prohibited by the terms of this Agreement, ;
(v) exercise any of its rights or remedies with respect to the Subordinated Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i);
(vi) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations;
(vii) object to any proposed acceptance of Collateral by the First Lien Collateral Agent or any First Lien Claimholder pursuant to Section 9-620 of the UCC;
(viii) inspect or appraise the Collateral (and engage or retain investment bankers or appraisers for the sole purpose of appraising or valuing the Collateral), or request information or reports concerning the Collateral; and
(ix) accelerate any Second Lien Obligations in accordance with the provisions of the Second Lien Loan Documents. The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated Second Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, creditor unless and until the Discharge of First Lien Obligations has occurred, except as in connection with any Enforcement Action expressly provided in Sections 3.1(a), 6.3(bpermitted by Section 3.1(a)(i) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein such Second Lien Collateral Agent and Second Lien Claimholders are permitted to receive a share of retain the proceeds thereof, if any, after the Discharge thereof in accordance with Section 4.2 of First Lien Obligations has occurredthis Agreement.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1i) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each Second Lien ClaimholdersClaimholder, agrees that the Subordinated such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each Second Lien ClaimholdersClaimholder, hereby waives any and all rights it or the Subordinated such Second Lien Collateral Agent and such Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the any First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3iii) the Subordinated Second Lien Collateral Trustee Agent, for itself and on behalf of each other Second Lien Claimholder, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Second Lien Collateral Documents or any other Subordinated Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)this Agreement, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders may exercise rights and remedies as available to unsecured creditors against the Company either Borrower or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor, other than after the expiration of the Standstill Period); provided that that, in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement; provided, further, that, nothing herein shall be construed to constitute a waiver of any Default or Event of Default (each as defined in the Second Lien Loan Agreement) that has occurred under the Second Lien Loan Agreement.
(f) Except as specifically set forth in Sections Section 3.1(a) and (d3.1(d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Collateral Agent or the any First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement (Turning Point Brands, Inc.)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company or any other GrantorObligors, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated each Second Lien Representative, for itself and on behalf of its Related Second Lien Claimholders, hereby agrees that it and its Related Second Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies (including setoff, recoupment and the right to credit bid, if any) with respect to any Collateral (including the exercise of or institute or commence, or join with any right of setoff Person in instituting or commencing, any other Enforcement Action or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any other 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); provided that the Second Lien Collateral Agent or any Person authorized by it may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 270 days since the First Lien Collateral Agent and each First Lien Representative shall have received notice from the Second Lien Collateral Agent with respect to the acceleration by the relevant Second Lien Claimholders of the maturity of all then outstanding Second Lien Obligations (and requesting that Enforcement Action be taken with respect to the Collateral) so long as the applicable “event of default” shall not have been cured or waived (or the applicable acceleration rescinded) (the “Standstill Period”); provided, further, that, notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agent, any Second Lien Representative or any other Second Lien Claimholders exercise any rights or remedies with respect to any Collateral or institute or commence, or join with any Person in instituting or commencing, any other Enforcement Action or any other action or proceeding with respect to such rights or remedies, if, notwithstanding the expiration of the Standstill Period, either (A) the First Lien Collateral Agent or any other First Lien Claimholder shall have commenced and be diligently pursuing (or shall have sought or requested and be diligently pursuing relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and the pursuit of) an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of 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 Claimholders in their reasonable judgment) or (B) any of the Obligors is then a debtor in any Insolvency or Liquidation Proceeding;
(2) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the First Lien Collateral Agent or any other First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any other First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; andotherwise (and acknowledges and agrees that if the First Lien Collateral Agent seeks to appoint an administrator (in its capacity as a holder of a qualifying floating charge) it shall be entitled to do so in accordance with the First Lien Collateral Documents, the Insolvency ▇▇▇ ▇▇▇▇ and English common law and no Second Lien Collateral Agent or Second Lien Claimholder shall object to or seek to replace such appointee);
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the other First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action Enforcement Action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted to secure the Subordinated First Lien Obligations of the Subordinated Collateral Agent or other First Lien Claimholders attach in excess of those necessary to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the achieve a 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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case are distributed in accordance with the terms of this AgreementSection 4.1; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral Collateral, or any proceeds of Collateral or payment with respect to any Collateral, in connection with the any Enforcement Action or any other exercise of any right or remedy with respect to any Collateral or any Insolvency or Liquidation Proceeding in its capacity as a creditor or in connection with any insurance policy award or any award in a condemnation or similar proceeding (including set-off and recoupmentor deed in lieu of condemnation) with respect to any Collateral Collateral, in its capacity as a creditor, each case unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent the Second Lien Collateral Agent and the other Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.1. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a3.1(a)(1), 6.3(b3.1(c) and this Section 3.1(c6.3(b), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders with respect to the Collateral (other than inspection, monitoring, reporting and similar rights provided for in the Second Lien Financing Documents) is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any First Lien Obligor, subject to Sections 3.1(a)(1), 3.1(c) and 6.3(b), the First Lien Collateral Agent and the other First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise exercise any rights and remedies (including set-off, recoupment and the right to “credit bid” their debt, except that the Second Lien Collateral Agent shall have the “credit bid” rights set forth in Section 3.1(c)(6)), and make determinations regarding the release, Disposition, or restrictions with respect to the Collateral, in each case without any consultation with or the consent of the Second Lien Collateral Agent or any other Second Lien Claimholder; provided that any proceeds received by the First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the other First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with the Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise Dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or other Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Second Lien Collateral Agent and any other Second Lien Claimholder may:
(1) file a claim, proof of 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 any of the Second Lien Obligors by a Person other than a Second Lien Claimholder;
(2) take any action in order to create, perfect, preserve or protect (but not enforce) its Lien on the Collateral to the extent (A) not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of the First Lien Collateral Agent or the other First Lien Claimholders to exercise rights and remedies in respect thereof, and (B) not otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 5.1;
(3) 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 of the Second Lien Claimholders, including any claims or Liens secured by the Collateral, if any, in each case to the extent not inconsistent with the terms of this Agreement;
(4) vote on any plan of reorganization or similar dispositive restructuring plan, arrangement, compromise or liquidation, and make filings and make any arguments and motions with respect to the Second Lien Obligations and the Collateral that are, in each case, in accordance with the terms of this Agreement, including Section 6.9(c); provided that no vote, or pleading relating to such vote, to accept or reject a plan of reorganization or similar dispositive restructuring plan, arrangement, compromise or liquidation, no other document, agreement or proposal similar to the foregoing, and no filing, argument or motion by the Second Lien Collateral Agent or any other Second Lien Claimholder may, in each case, be inconsistent with the terms of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any other First Lien Claimholder, or any sale of any Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
(d) Subject to Sections 3.1(a)(1), 3.1(c) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral TrusteeAgent and each Second Lien Representative, for itself and on behalf of the Subordinated its Related Second Lien Claimholders, :
(1) agrees that the Subordinated Collateral Trustee it and the Subordinated its Related Second Lien Claimholders will not take any action that would hinder hinder, delay, limit or prohibit any exercise of rights or remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer collection or other disposition Disposition of the any Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien securing any First Lien Obligations or any First Lien 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;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated its Related Second Lien Claimholders may have as a junior lien Lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the First Lien Collateral Agent or the other First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementObligations, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Claimholders is adverse to the interest of the Subordinated any Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated The Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Obligors that has have guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Initial Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Obligor, prior to the termination of the Standstill Period or as otherwise prohibited pursuant to the second proviso in Section 3.1(a)(1)); provided that (i) any such exercise shall not be directly or indirectly inconsistent with or prohibited by the terms of this Agreement (including Section 6 and any provision prohibiting or restricting the Second Lien Claimholders from taking various actions or making various objections) and (ii) in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing . Nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of principal, premium, interest, principal fees and other amounts owed in respect of due under the Subordinated Initial Second Lien Obligations Documents so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 subject to the First Lien Collateralturnover pursuant to Section 4.2.
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement (Mallinckrodt PLC)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Senior 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:,
(1i) neither any Junior Representative nor any Junior Debt Party will not (A) exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Collateral (including the exercise in respect of any right of setoff or any right under any lockbox agreementJunior Debt Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
; provided, that, subject to extension as a result of any Permitted Delay, any Junior 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 (such period, as extended as a result of any Permitted Delay, the “Standstill Period”) of 180 consecutive days has elapsed from the date of delivery of written notice from such Junior Representative to the Senior Representative stating that (1) an Event of Default (as defined under the Junior Debt Documents for which such Junior Representative has been named as Representative) has occurred and is continuing thereunder, (2) will the Junior Debt Obligations of the series with respect to which Junior Representative is the Junior Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the Junior Debt Documents, and (3) the Designated Junior 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 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 (any such period while the Senior Representatives or Senior Secured Parties are diligently pursuing such rights and remedies or making any such attempt or any such Grantor is a debtor (a “Permitted Delay”), (B) except to the extent not prohibited herein, contest, protest or object to any foreclosure proceeding or action brought with respect to the Collateral by the First Lien Collateral Agent Senior Representative or any First Lien Claimholder Senior Secured Party in respect of the Senior Obligations, the exercise of any right by the Senior Representative or any Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Representative or any Senior 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 First Lien Claimholder such party of any rights and remedies relating to the Collateral under the First Lien Senior Debt Documents or otherwise; and
otherwise in respect of the Senior Obligations, (3C) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action during the Standstill Period or any other exercise of any rights or remedies relating to the CollateralCollateral in respect of Senior Obligations or (D) credit bid (it being understood, for the avoidance of doubt, that a credit bid which includes a cash portion sufficient to cause a Discharge of Senior Obligations will not be precluded); provided further, after the expiration of the Standstill Period, so long as neither the Senior Representative nor any of the Senior Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral and any acceleration of the Junior Debt Obligations has not been rescinded, in each case the event that and for so long as the Liens granted Junior Debt Parties (or the Junior Representatives on their behalf) have commenced actions to secure the Subordinated enforce their Lien Obligations with respect to all or any material portion of the Subordinated Lien Claimholders attach Collateral to the proceeds thereof subject extent permitted hereunder and are diligently pursuing such actions (it being understood that this proviso shall not constitute a waiver by the Senior Representative or the Senior Secured Parties of the provisions of Article VI), neither the Senior Secured Parties nor the Senior Representative shall take any action of a similar nature with respect to such Collateral so long as the relative priorities described in Section 2.
other provisions of this Agreement (bincluding the turnover provisions of Article VI) Until are complied with; and provided further that (x) the Discharge of First Lien Obligations has occurred, whether or not Standstill Period shall be tolled for so long as any Insolvency or Liquidation Proceeding has been commenced by or against the Company automatic stay or any other Grantorstay or other order prohibiting the exercise of remedies by the Senior Representative or the Senior Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction and (y) the period set forth in the immediately preceding proviso shall be tolled for so long as any automatic stay or any other stay or other order prohibiting the exercise of remedies by the Junior Representatives or the Junior Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction, and
(ii) except as otherwise provided herein, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-offsetoff, recoupment and the right to credit bid their debt, except that the Junior Debt Parties shall have the credit bidding rights set forth in Section 3.01(a)(i)(D)) and, in that connection, subject to Section 5.15.01, to make determinations regarding the release, disposition, disposition or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Junior Representative or any Subordinated Junior Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, any Junior Representative may file a claim, proof of claim, or statement of interest with respect to the Junior Debt Obligations under its Junior Debt Facility, (B) any Junior Representative may take any action (not adverse to the prior Liens on the Collateral securing the Senior Obligations or the rights of the Senior Representative or the Senior 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 Claimholder; provided thaton, the Lien securing Collateral, (C) any Junior Representative and the Subordinated Lien Obligations shall remain on Junior Debt Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, (D) any Junior Representative may exercise the proceeds rights and remedies provided for in Article VI, (E) in any Insolvency or Liquidation Proceeding, any Junior 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 of the claims or Liens of the Junior Debt Parties, including without limitation any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement, (F) in any Insolvency or Liquidation Proceeding, the Junior Debt Parties will not vote for any plan of reorganization unless the Senior Representative and the Senior Secured Parties support such Collateral released plan, and (G) any Junior Representative and the Junior Debt Parties may exercise any of their rights or disposed of subject remedies with respect to the relative priorities described in Collateral after the termination of the Standstill Period to the extent permitted by Section 23.01(a)(i). In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties may enforce the provisions of the First Lien Senior 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 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 creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding Until the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status expiration of the Liens on the Collateral securing the First Lien ObligationsStandstill Period and subject to Section 4.02, 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeJunior Representative, on behalf of itself and each Subordinated Lien ClaimholderJunior Debt Party under its Junior Debt Facility, agrees that it will not not, in the context of its role as secured creditor, take or receive any Collateral or any proceeds Proceeds of Collateral in connection with the exercise of any right or remedy (including set-off setoff and recoupment) with respect to any Collateral in respect of its capacity as a creditor, unless and Junior Debt Obligations until after the Discharge of First Lien Senior Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.01(a)(i), but then only to the extent any Junior Representative and Junior Debt Parties are permitted to retain the proceeds thereof in accordance with Section 4.02). Without limiting the generality of the foregoing, unless and until the Discharge expiration of First Lien Obligations the Standstill Period has occurred, except as expressly provided in Sections 3.1(a), 6.3(bthe proviso in clause (ii) of Section 3.01(a) and this Section 3.1(c)6.03, the sole right of the Subordinated Collateral Trustee Junior Representatives and the Subordinated Lien Claimholders Junior Debt Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of Junior Debt Obligations pursuant to the Subordinated Lien Collateral 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 First Lien Senior Obligations has occurred.
(dc) Subject to Sections 3.1(cthe proviso in clause (ii) of Section 3.01(a) and Section 6.3(b):
6.03, (1i) the Subordinated Collateral Trusteeeach Junior Representative, for itself and on behalf of the Subordinated Lien Claimholderseach Junior Debt Party under its Junior Debt Facility, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders neither such Junior Representative nor any such Junior Debt Party will not take any action that would hinder any exercise of remedies undertaken by the Senior Representative or any Senior Secured Party with respect to the Collateral under the First Lien Documents or is otherwise prohibited hereunderSenior Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral Trusteeeach Junior Representative, for itself and on behalf of the Subordinated Lien Claimholderseach Junior Debt Party under its Junior Debt Facility, hereby waives any and all rights it or the Subordinated Lien Claimholders any such Junior Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Parties seek to enforce or collect the First Lien Senior Obligations or the Liens securing the First Lien Obligations granted in on any of the First Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent Senior Representative or First Lien Claimholders any other Senior Secured Party is adverse to the interest interests of the Subordinated Lien Claimholders; andJunior Debt Parties.
(3d) Until the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies expiration of the First Lien Collateral Agent Standstill Period, the Senior Representative shall have the exclusive right to exercise any right or the First Lien Claimholders remedy with respect to the Collateral as set forth in this Agreement and shall have the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) exclusive right to determine and (d)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 Subordinated Collateral Trustee and Designated Junior Representative who may be instructed by the Subordinated Lien Claimholders may Junior Majority Representatives shall have the exclusive right to exercise rights and remedies as unsecured creditors against the Company any right or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor remedy with respect to the Subordinated Lien ObligationsCollateral, such judgment Lien and the Designated Junior Representative who may be instructed by the Junior Majority Representatives shall be subject 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 terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 Junior Debt Parties with respect to the First Lien 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 3.01(e) 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 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.
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Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (including i) the date on which a Second Lien Representative declared the existence of any action Event of foreclosureDefault under (and as defined in) any Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any 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, any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder); and
(3) subject to their rights under clause (a)(1Section 3.1(a)(1) above, will not object to the forbearance by the any First Lien Representative, any 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 Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholder; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations; and
(7) object to any proposed acceptance of Collateral by a First Lien Representative, a First Lien Collateral Agent or First Lien Claimholder pursuant to Section 9-620 of the UCC. The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Second Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as in connection with any foreclosure expressly provided in Sections 3.1(a), 6.3(bpermitted by Section 3.1(a)(1) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First such Second Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents Representative or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First such Second Lien Collateral Agent or the First and Second Lien Claimholders seek represented by it are permitted to enforce or collect retain the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken proceeds thereof in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.with
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Exercise of Remedies. (a) Until the Discharge of First Lien Revolving Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Term Collateral Trustee Agent and the Subordinated Lien ClaimholdersTerm Secured Parties:
(1i) will not exercise or seek to exercise any rights or remedies with respect to any ABL Collateral subject to any Revolving Lien (including the exercise of any right 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 Subordinated Term Collateral Trustee Agent or any Subordinated Lien Claimholder Term Secured Party 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 Term Collateral Agent or any Term Secured Party may exercise any or all such rights or remedies after a period of 180 days has elapsed since the first date on which the Term Collateral Agent shall have (A) declared the existence of any Event of Default under the Term Documents, (B) demanded the repayment of all the principal amount of the Term Obligations and (C) notified the Revolving Collateral Agent of such declaration of an Event of Default and demand (the “Standstill Period”); provided further, however, that notwithstanding anything herein to the contrary, in no event shall the Term Collateral Agent or any Term Secured Party exercise any rights or remedies with respect to any ABL Collateral subject to any Revolving Lien, notwithstanding the expiration of the Standstill Period, if the Revolving Collateral Agent or Revolving Secured Parties shall have commenced and be diligently pursuing the exercise of rights or remedies with respect to all or any material portion of such ABL Collateral (prompt notice of such exercise to be given to the Term Collateral Agent); provided further, however, that the parties hereto acknowledge and agree that this Section 3.1(a)(i) shall not in any way prohibit the Term Collateral Agent or any Term Secured Party from exercising any of its rights during an Insolvency or Liquidation Proceeding to the extent permitted by the other provisions hereof;
(2ii) subject to Section 2.1(c), will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Revolving Collateral Agent or any First Lien Claimholder Revolving Secured Party or any other exercise by the First Lien Revolving Collateral Agent or any First Lien Claimholder Revolving Secured Party of any rights and remedies relating to the Collateral any ABL Collateral, whether under the First Lien applicable Revolving Documents or otherwise; and
(3iii) subject to their rights under clause (a)(1a)(i) aboveabove and except as may be permitted in Section 3.1(c), will not object to the forbearance by the First Lien Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateralany ABL Collateral subject to any Revolving Lien; provided that, in each the case so long as of clauses (i), (ii) and (iii) above, the Liens granted on the ABL Collateral to secure the Subordinated Lien Term Obligations of the Subordinated Lien Claimholders shall attach to any Proceeds resulting from actions taken by the proceeds thereof subject Revolving Collateral Agent or any Revolving Secured Party in accordance with this Agreement after application of such Proceeds to the relative priorities described in Section 2extent necessary to meet the requirements of a Discharge of Revolving Obligations.
(b) Until Subject to the terms and conditions of this Agreement, until the Discharge of First Lien Revolving Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(i), the First Lien Revolving Collateral Agent and the First Lien Claimholders Revolving Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including the exercise of any right of set-off, recoupment any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement and the right to credit bid their debt) and, subject to Section 5.1in the course of such exercise, to make related determinations regarding the release, disposition, disposition or restrictions with respect to the any ABL Collateral subject to Revolving Liens without any consultation with or the consent of the Subordinated Term Collateral Trustee Agent or any Subordinated Lien ClaimholderTerm Secured Party; provided that, that the Lien Liens on any ABL Collateral securing the Subordinated Lien any Term Obligations shall remain on the proceeds Proceeds of such Collateral so released or disposed of of, subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the CollateralABL Collateral subject to the Revolving Liens, the First Lien Revolving Collateral Agent and the First Lien Claimholders each Revolving Secured Party may enforce the provisions of the First Lien applicable Revolving 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 of such ABL 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 creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Term Collateral Trustee Agent and any Subordinated Lien Claimholder Term Secured Party may:
(1i) file a claim or statement of interest with respect to the Subordinated Lien applicable Term Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) take any action (not adverse to the priority status of the any Revolving Liens on the ABL Collateral securing the First Lien Obligations, or the rights of any First Lien the Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien Term Liens on the ABL Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien ClaimholdersTerm Secured Parties, including any claims secured by the ABL Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) file any pleadings, objections, motions or agreements to assert rights or interests that are available to unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or any applicable law and that, in each case, are not inconsistent with the terms of this Agreement;
(v) 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 Subordinated Lien Term Obligations and the Collateral; and
(vi) exercise any of its rights or remedies with respect to the ABL Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i). The Subordinated Term Collateral TrusteeAgent, on behalf of itself and each Subordinated Lien Claimholderthe Term Secured Parties, agrees that it will not take or receive any ABL Collateral subject to any Revolving Lien or any proceeds Proceeds of any such ABL Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any such ABL Collateral in its capacity as a creditor, unless and until the Discharge creditor in violation of First Lien Obligations has occurredthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Revolving Obligations has occurred, except as expressly provided in Sections 3.1(a), Section 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Term Collateral Trustee Agent and the Subordinated Lien Claimholders Term Secured Parties with respect to the any ABL Collateral subject to any Revolving Lien is to hold a Lien on the such ABL Collateral pursuant to the Subordinated Lien applicable Term Collateral 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 First Lien Revolving Obligations has occurred.
(d) Subject to Sections 3.1(a), 3.1(c) and Section 6.3(b):
(1i) the Subordinated Term Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Secured Parties, agrees that the Subordinated Collateral Trustee it and the Subordinated Lien Claimholders Term Secured Parties will not take any action that would hinder or delay any exercise of remedies with respect to the ABL Collateral under the First Lien applicable Revolving Documents or is the realization of the full value of any ABL Collateral in which the Revolving Collateral Agent has Liens or would otherwise be prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateralany ABL Collateral subject to any Revolving Lien, whether by foreclosure or otherwise;
(2ii) the Subordinated Term Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Secured Parties, hereby waives any and all rights it or the Subordinated Lien Claimholders Term Secured Parties may have as a junior lien creditor creditors or otherwise to object to the manner in which the First Lien Revolving Collateral Agent or the First Lien Claimholders seek any Revolving Secured Party seeks to enforce or collect realize on the First Lien Obligations or Revolving Liens on the Liens securing the First Lien Obligations granted in any of the First Lien ABL Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Revolving Collateral Agent or First Lien Claimholders such Revolving Secured Party is adverse to the interest interests of the Subordinated Lien ClaimholdersTerm Secured Parties; and
(3iii) the Subordinated Term Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Term Collateral Documents or any other Subordinated Lien Term Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party with respect to the ABL Collateral subject to their Revolving Liens as set forth in this Agreement and the First Lien Revolving Documents.
(e) Except as otherwise specifically set forth in Sections 3.1(a) and (d3.1(d), the Subordinated Term Collateral Trustee Agent and the Subordinated Lien Claimholders Term Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Person that has guaranteed or granted Liens to secure the Subordinated Lien Term Obligations in accordance with the terms of the Subordinated Lien Term Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder Term Secured Party becomes a judgment Lien creditor in respect of any ABL Collateral subject to any Revolving Lien as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated Lien applicable Term Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to of this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated Term Collateral Trustee Agent or any Subordinated Lien Claimholders Term Secured Party of the required or permitted payments of interest, principal and other amounts owed in respect of the Subordinated Lien applicable Term Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Term Collateral Trustee Agent or any Subordinated Lien Claimholders Term Secured Party of rights or remedies against the ABL Collateral as a secured creditor (including set-off and recoupmentoff) or enforcement in contravention of this Agreement of any Term Lien on ABL Collateral held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party may have with respect to the First Lien Collateralany ABL Collateral subject to its Revolving Liens.
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Exercise of Remedies. (a) Until So long as the Discharge of 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) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1A) 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 any right of set-off or recoupment) with respect to any Collateral (including including, without limitation, the exercise of any right 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 Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder is a party) or institute or commence (or join with any other Person in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including, without limitation, any Insolvency or Liquidation Proceeding) with respect to such rights any Lien held by it under the Second Lien Collateral Documents or remedies (including any action of foreclosure);other Second Lien Credit Document or otherwise; and
(2B) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Claimholder, of any rights and remedies relating to the Collateral under the First Lien Credit Documents or otherwise, provided that the respective interests of the Second Lien Claimholders attach to the proceeds thereof, subject to the relative priorities described in Section 2 and Section 4; and
(3C) subject to their the rights of the Second Lien Collateral Agent under clause (a)(1i)(A) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof ; and
(ii) subject to the relative priorities described in Section 2.
(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 Grantor5.1 and Section 6, the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided provided, that
(A) in any Insolvency or Liquidation Proceeding commenced by or against Company or any other Grantor, the Second Lien Collateral Agent may file a claim or statement of interest with respect to the Second Lien Obligations,
(B) the Second Lien Collateral Agent may take any action (not adverse to the Liens on the Collateral securing the Subordinated First Lien Obligations shall remain Obligations, or the rights of any First Lien Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to preserve or protect its Lien on the proceeds Collateral,
(C) 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 such Collateral released 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) in any Insolvency or disposed Liquidation Proceeding, 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 subject the Grantors arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement,
(E) in any Insolvency or Liquidation Proceeding, the Second Lien Claimholders shall be entitled to vote on any plan of reorganization, to the relative priorities described in Section 2extent consistent with the provisions hereof, and
(F) the Second Lien Collateral Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 the First Lien Collateral Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 The Second Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral, and that any Collateral in its capacity as a creditoror proceeds taken or received by it will be paid over to the First Lien Collateral Agent pursuant to Section 4.2, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c3.1(a)(ii), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredtherein.
(dc) Subject to Sections 3.1(cthe proviso in clause (ii) of Section 3.1(a) and Section 6.3(b):
(1) 6.4, the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that (i) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderCredit Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner or order in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Collateral.
(d) The Second Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Credit Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that in any Insolvency or Liquidation Proceeding any Second Lien Representative, Second Lien Collateral (including the exercise of any right of setoff Agent or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute may take any action or proceeding with respect to such rights or remedies (including any action of foreclosure)expressly permitted by Section 6 hereof;
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; andotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder);
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the any First Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; and
(4) no Second Lien Representative, Second Lien Collateral Agent or Second Lien Claimholder shall file any notice or other document under the federal Assignment of Claims Act 31 USC 3737, 41 USC 15 that requires payment to any Second Lien Representative, Second Lien Collateral Agent or Second Lien Claimholder, in each case so long as the Liens granted to secure the Subordinated any proceeds received by any First Lien Obligations of the Subordinated Representative or First Lien Claimholders attach to the proceeds thereof subject to the relative priorities described Collateral Agent are applied in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the sole and exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Claimholders shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholder; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative or First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described Agent are applied in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder, may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to, and are applied to, cause the Discharge of First Lien Obligations; and
(7) exercise rights and remedies as unsecured creditors against the Company and any other Grantor in accordance with applicable law (so long as such rights and remedies do not violate and are not otherwise inconsistent with any provision of this Agreement). The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Second Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Claimholders represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement and applicable law. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a) and 3.1(c) and Section 6.3(b):
(1) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders represented by it will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Second Lien Representative or the Subordinated such Second Lien Collateral Agent and such Second Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated each Second Lien Representative and each Second Lien Collateral Trustee Agent, for itself and on behalf of each other Second Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Second Lien Collateral Documents or any other Subordinated Lien Debt Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsAgreement.
(e) Except as specifically set forth in Sections 3.1(a) and (d)The Second Lien Representatives, the Subordinated Second Lien Collateral Trustee Agents and the Subordinated other 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Debt Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem in respect of the Collateral. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Summit Midstream Partners, LP)
Exercise of Remedies. (a) Until the Discharge of First Lien Super Senior Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Lien Collateral Trustee Agent and the Subordinated Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Subordinated Lien Collateral Agent (acting at the direction of a majority in interest of the Subordinated Lien Claimholders) may commence an Enforcement Action or otherwise exercise any Collateral or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the earlier of: (including i) following the exercise occurrence of any right Event of setoff or any right Default under any lockbox agreementSubordinated Lien Loan Document, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to the date on which the Super Senior Collateral Agent was given notice thereof in accordance with Section 8.9 and (ii) following the occurrence of the acceleration of the Subordinated Lien Obligations, the date on which the Super Senior Collateral Trustee Agent was given notice thereof in accordance with Section 8.9 (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall the Subordinated Lien Collateral Agent or any Subordinated Lien Claimholder is a party) exercise any rights or institute any action or proceeding remedies with respect to the Collateral so long as, notwithstanding the expiration of the Standstill Period, the Super Senior Collateral Agent or Super Senior Claimholders shall have commenced and be diligently pursuing an Enforcement Action with respect to all or any material portion of the Collateral or the Company or any other Grantor is then, and then only for so long as it remains, a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding (with prompt notice of such rights or remedies (including any action of foreclosureexercise to be given to the Subordinated Lien Collateral Agent);
(2) will not contest, protest protest, hinder, delay, or object to any foreclosure proceeding or action brought by the First Lien Super Senior Collateral Agent or any First Lien Super Senior Claimholder or any other exercise by the First Lien Super Senior Collateral Agent or any First Lien Super Senior Claimholder of any rights and remedies relating to the Collateral under the First Lien Super Senior Securities Purchase Documents or otherwise; and
otherwise (3) subject to their rights under clause (a)(1) above, will not object to the forbearance including any Enforcement Action initiated by or supported by the First Lien Super Senior 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Super Senior Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor);
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor: the Company or any other Grantor, the Subordinated Collateral Trustee Junior Agent (on behalf of itself and the Subordinated Lien other Junior Claimholders:
), agrees that, without the consent of the Senior Agent (1given at the direction of the Required Lenders), (i) it will not exercise or seek to exercise any rights or remedies with respect to the Liens on any Junior Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action Exercise of foreclosure);
(2) will not contest, protest or object Secured Creditor Remedies with respect to any foreclosure proceeding or action brought by Junior Collateral); provided that the First Lien Collateral Junior Agent may exercise such rights and remedies after the expiry of the Standstill Period so long as any and all proceeds received as a result thereof are delivered to the Senior Agent pursuant to the provisions of Section 4.2 for application pursuant to the provisions of Section 4.1; provided, further, that notwithstanding anything in this Section 3.1(a)(i) to the contrary, (A) in no event shall the Junior Agent or any First Lien other Junior Claimholder exercise any such rights or remedies if, notwithstanding the expiration of the Standstill Period, (x) the Senior Agent has commenced and is diligently pursuing the Exercise of Secured Creditor Remedies with respect to all or any other exercise by material portion of such Collateral, or (y) the First Lien Collateral Event of Default (as defined in the Junior Indenture) that existed under the Junior Indenture on the date of the notice referred to in the definition of “Standstill Period” has been waived, and (B) the Standstill Period shall be tolled for any period that the Senior Agent or any First Lien Claimholder of the Senior Claimholders are stayed (including pursuant to any stay resulting from the commencement of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise Insolvency Proceeding of any rights Grantor) or remedies relating to the Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the Discharge of First Lien Obligations has occurred, whether otherwise prohibited by law 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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In court order from exercising rights and remedies with respect to all or any material portion of the Collateral; (ii) it will not directly or indirectly contest, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise remedies thereunderprotest, all or object to or hinder or delay in such order and in such any manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed (whether by them to sell judicial proceeding or otherwise), or otherwise dispose interfere with any Exercise of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced Secured Creditor Remedies by or against the Company Senior Agent or any other Grantor;
(2) Senior Claimholder and has no right to direct Senior Agent to Exercise any Secured Creditor Remedies or take any other 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.Senior
Appears in 1 contract
Sources: Supplemental Indenture (Altera Infrastructure L.P.)
Exercise of Remedies. (a) Until the Discharge date on which all the Senior Secured Claims shall have been paid in full, the Senior Representative, in its sole discretion and to the exclusion of First Lien Obligations has occurredthe Subordinated Representatives, shall have, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against default under the Company or Indenture shall have occurred and be continuing and both before and after the commencement of any other Grantorproceeding referred to in Section 9.07(a), the Subordinated Collateral Trustee sole and exclusive right (as between the Senior Representative, on the one hand, and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreementRepresentatives, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject other) to direct the relative priorities described in Section 2. In exercising rights and remedies Security Trustee to take all action with respect to the Collateral, including the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions right to exercise or direct voting or other consensual rights, to foreclose or forebear from foreclosure in respect of the First Lien Documents Collateral and exercise remedies thereunderto accept the Collateral in full or partial satisfaction of any Senior Secured Claim, 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeRepresentatives agree that, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided Senior Secured Claims have been paid in Sections 3.1(a), 6.3(b) and this Section 3.1(c)full, the sole only right of the Subordinated Collateral Trustee and Secured Claimants under this Agreement is for the Subordinated Lien Claimholders with respect Secured Claims to be secured by the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein provided for herein or in the Indenture and to receive a share of the proceeds thereofof the Collateral, if any, after subject to payment priorities set forth in Article III of the Discharge of First Lien Obligations has occurredIndenture.
(db) Subject The Subordinated Representatives agree that, so long as any of the Senior Secured Claims shall remain unpaid, they and the Subordinated Secured Claimants will not commence, or join with any creditor other than the Security Trustee and the Senior Secured Claimants in commencing, any enforcement, collection, execution, levy or foreclosure proceeding with respect to Sections 3.1(c) the Collateral or proceeds of Collateral. Upon request by the Senior Representative, the Subordinated Representatives and Section 6.3(b):the Subordinated Secured Claimants will, at the expense of the Issuer, join in enforcement, collection, execution, levy or foreclosure proceedings and otherwise cooperate fully in the maintenance of such proceedings by the Security Trustee, including by executing and delivering all such consents, pleadings, releases and other documents and instruments as the Security Trustee may reasonably request in connection therewith, it being understood that the conduct of such proceedings shall at all times be under the exclusive control of the Security Trustee acting upon the directions of the Senior Representative.
(1c) The Subordinated Representatives agree, upon written request by the Subordinated Collateral TrusteeSenior Representative, for itself to release the liens and on behalf security interests in favor of the Subordinated Lien ClaimholdersSecured Claimants in any Collateral and to execute and deliver all such directions, agrees that consents, pleadings, releases and other documents and instruments as the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderSenior Representative may reasonably request in connection therewith, including upon any sale, lease, exchange, transfer or other disposition of such Collateral or part thereof in accordance with, or for application of proceeds pursuant to, Section 9.05(a). [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. Confidential Treatment Requested: Information for which confidential treatment has been requested is omitted and is noted with asterisks. An unredacted version of this document has been filed separately with the Collateral, whether by foreclosure or otherwise;Securities and Exchange Commission
(2d) the The Subordinated Collateral TrusteeRepresentatives agree that neither they nor any Subordinated Secured Claimants will contest, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor bring (or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether join in) any action or failure proceeding for the purpose of contesting, the validity, perfection or priority of, or seeking to act by or on behalf avoid, the rights of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Claimants in or with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Security Trust Agreement (Willis Lease Finance Corp)
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided, however, that the Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (including i) the date on which the Second Lien Collateral Agent declared the existence of any action Event of foreclosureDefault under any Second Lien Note Facility Documents and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Collateral Agent received notice from the Second Lien Collateral Agent of such declarations of an Event of Default, (the “Standstill Period”); provided, further, however, that 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 First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as any Proceeds received by the Liens granted First Lien Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of are distributed in accordance with the Subordinated Lien Claimholders attach to the proceeds thereof UCC and other applicable law, subject to the relative priorities described in Section 2herein.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Collateral Agent shall have the credit bid rights set forth in 3.1(c)(6)), subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided thatprovided, that any Proceeds received by the First Lien securing the Subordinated Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on are distributed in accordance with the proceeds of such Collateral released or disposed of UCC and other applicable law, subject to the relative priorities described in Section 2herein. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Collateral Agent or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filings, whether of any disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or otherwise by the Second Lien Collateral Agent or any Second Lien Claimholder may be inconsistent with the priority provisions as set forth in this Agreement and the Loan Documents;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations. The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent the Second Lien Collateral Agent and Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) . Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and;
(3) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
(ea) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Second Lien Collateral Trustee Agent and the Subordinated 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Note Facility Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(fb) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (including i) the date on which a Second Lien Representative declared the existence of any action Event of foreclosureDefault under (and as defined in) any Second Lien Loan Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any 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, any First Lien Representative, any First Lien Collateral Agent or any applicable First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder); and
(3) subject to their rights under clause (a)(1) above, above will not object to the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the any First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 hereof and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholder; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 hereof and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder, may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations. The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Second Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as in connection with any foreclosure expressly provided in Sections 3.1(a), 6.3(bpermitted by Section 3.1(a)(1) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First such Second Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents Representative or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First such Second Lien Collateral Agent or the First and Second Lien Claimholders seek represented by it are permitted to enforce or collect retain the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken proceeds thereof in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.with
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement (Engility Holdings, Inc.)
Exercise of Remedies. (a) Until So long as the Discharge of First 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, neither the Subordinated Collateral Trustee and the Subordinated Second-Lien ClaimholdersAgent nor any Second-Lien Secured Party shall:
(1i) will not exercise or seek to exercise any rights or remedies (including set-off) with respect to any First-Lien Collateral (including the exercise in respect of any right of setoff or any right under any lockbox agreementapplicable Second-Lien Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought with respect to the First-Lien Collateral by the First First-Lien Collateral Agent or any First First-Lien Claimholder Secured Party in respect of the First-Lien Obligations, the exercise of any right by the First-Lien Agent or any First-Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First-Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second-Lien Agent or any Second-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 First Lien Claimholder such party of any rights and remedies as a secured party relating to the First-Lien Collateral under the First First-Lien Documents or otherwiseotherwise in respect of First-Lien Obligations; andor
(3iii) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First First-Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the CollateralFirst-Lien Collateral in respect of First-Lien Obligations; provided, however that if an Event of Default (as defined in the Second-Lien Documents (as in effect on the date hereof)) has occurred and for so long as such Event of Default is continuing, subject at all times to the provisions of Sections 2.1 and 4, after the expiration of a 120-day period (the “Standstill Period”) which shall commence on the date of receipt by the First-Lien Agent of the written declaration of the Second-Lien Agent of such Event of Default and written demand by the Second-Lien Agent to the Company for the accelerated payment of all Second-Lien Obligations (unless any Grantor is subject to an Insolvency or Liquidation Proceeding by reason of which such declaration and the making of such demand is stayed, in each case which case, commencing on the date of the commencement of such Insolvency or Liquidation Proceeding), the Second-Lien Agent may take action to enforce its second-priority Liens on the First-Lien Collateral upon 10 days’ prior written notice to the First-Lien Agent (which notice may be given prior to the completion of such 120-day period, but not prior to the 90th day of such period), but only so long as the First-Lien Agent is not, or has not within such 10-day period commenced, diligently pursuing in good faith the exercise of its enforcement rights or remedies against, or diligently attempting to vacate any stay on enforcement of its Liens granted to secure the Subordinated Lien Obligations on, all or any material portion of the Subordinated First-Lien Claimholders attach Collateral (including, without limitation, commencement of any reasonable action to the proceeds thereof subject foreclose its Liens on such First-Lien Collateral, any reasonable action to the relative priorities described in Section 2take possession of such First-Lien Collateral or commencement of any reasonable legal proceedings or actions against or with respect to such First-Lien Collateral).
(b) Until Except as expressly provided in the proviso in Section 3.1(a), so long as the Discharge of First First-Lien Obligations has occurred, not occurred and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the First First-Lien Collateral Agent and the First First-Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, disposition or restrictions with respect to the First-Lien Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second-Lien Agent or any Subordinated Second-Lien ClaimholderSecured Party; provided thatprovided, however, that the Second-Lien Agent may take any action (not adverse to the prior Liens on the First-Lien Collateral securing the First-Lien Obligations, or the rights of the First-Lien Agent or the 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 First-Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2Collateral. In exercising rights and remedies with respect to the First-Lien Collateral, the First First-Lien Collateral Agent and the First First-Lien Claimholders Secured Parties may enforce the provisions of the First 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 First-Lien Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws Law of any applicable jurisdiction.
(c) Notwithstanding Except as expressly provided in the foregoingproviso in Section 3.1(a), so long as the Discharge of First-Lien Obligations has not occurred, the Subordinated Collateral Trustee and any Subordinated Second-Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated applicable Second-Lien ClaimholderSecured Party, agrees that it will not in the context of its role as secured creditor take or receive any First-Lien Collateral or any proceeds of First-Lien Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any First-Lien Collateral in its capacity as a creditor, unless and until respect of the Discharge of First applicable Second-Lien Obligations has occurredObligations. Without limiting the generality of the foregoing, unless and until the Discharge of First First-Lien Obligations has occurred, except as expressly provided in the provisos in Sections 3.1(a), 6.3(b) and this Section 3.1(c(b), the sole right of the Subordinated Collateral Trustee Second-Lien Agent and the Subordinated Second-Lien Claimholders Secured Parties with respect to the First-Lien Collateral is shall be to hold a Lien on the First-Lien Collateral in respect of the applicable Second-Lien Obligations pursuant to the Subordinated Second-Lien Collateral Documents 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 First First-Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Except as expressly provided in the provisos in Section 6.3(b):
3.1(a), (1i) the Subordinated Collateral TrusteeSecond-Lien Agent, for itself and on behalf of the Subordinated each applicable Second-Lien ClaimholdersSecured Party, agrees that the Subordinated Collateral Trustee and the Subordinated no Second-Lien Claimholders Agent or any Second-Lien Secured Party will not take any action that would hinder any exercise of remedies undertaken by the First-Lien Agent or the First-Lien Secured Parties with respect to the First-Lien Collateral under the First First-Lien Documents or is otherwise prohibited hereunderDocuments, including any sale, lease, exchange, transfer or other disposition of the First-Lien Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral TrusteeSecond-Lien Agent, for itself and on behalf of the Subordinated each applicable Second-Lien ClaimholdersSecured Party, hereby waives any and all rights it or the Subordinated any Second-Lien Claimholders Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First First-Lien Collateral Agent or the First First-Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the their Liens securing the First Lien Obligations granted in on any of the First First-Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First First-Lien Collateral Agent or First First-Lien Claimholders Secured Parties is adverse to the interest interests of the Subordinated Second-Lien Claimholders; andSecured Parties.
(3e) the Subordinated Collateral Trustee The Second-Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second-Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First First-Lien Collateral Agent or the First First-Lien Claimholders Secured Parties with respect to the First-Lien Collateral as set forth in this Agreement and the First First-Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (including i) the date on which a Second Lien Representative declared the existence of any action Event of foreclosureDefault under (and as defined in) any Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Secured Parties shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above, above will not object to the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien ClaimholderSecured Party; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of any First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties to exercise 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 Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations. The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral or Equity Release Proceeds in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Secured Parties represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders Secured Parties represented by it will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, hereby waives any and all rights such Second Lien Representative or such Second Lien Collateral Agent or such Second Lien Secured Parties represented by it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the other First Lien Claimholders seek Secured Party seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or other First Lien Claimholders Secured Party is adverse to the interest of the Subordinated any Second Lien ClaimholdersSecured Party; and
(3) each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of the Subordinated Collateral Trustee Second Lien Secured Parties represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Secured Party with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)this Agreement, the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor or otherwise taking any action that is inconsistent with the terms of this Agreement); provided that in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Secured Party of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Secured Party of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Secured Party of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the other First Lien Claimholders Secured Party may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Exercise of Remedies. (a) 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 Borrower or any other GrantorLoan Party, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1i) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder is a partyparty or which runs for the benefit of the Second Lien Collateral Agent or any Second Lien Claimholder) 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 or remedies after the passage of a period of at least 180 days duration which has elapsed since the later of
(A) the date on which the Second Lien Collateral Agent declared the existence of any Event of Default under any Second Lien Loan Documents and demanded the repayment of all the principal amount of any Second Lien Obligations; and
(B) the date on which the First Lien Collateral Agent received notice from the Second Lien Collateral Agent of such declarations of an Event of Default and demand (the “Standstill Period”); provided, further, however, that 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 First Lien Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseotherwise and none of the Second Lien Collateral Agent and the Second Lien Claimholders has any right to direct the First Lien Collateral Agent to take any foreclosure or other action; and
(3iii) subject to their rights under the proviso to clause (a)(1a)(i) above, will not object to (and waive any and all claims with respect to) the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 Borrower or any other GrantorLoan Party, subject to the proviso to Section 3.01(a)(i), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment setoff and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that, the . The First Lien securing the Subordinated Lien Obligations Collateral Agent shall remain on the proceeds of such Collateral released or disposed of subject provide notice to the relative priorities described in Section 2Second Lien Collateral Agent of its intent to exercise and enforce, or of the commencement of its exercising and enforcing of its rights or remedies with respect to the Collateral. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the First Lien Finance 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1i) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantoranother Loan Party;
(2ii) 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, preserve or protect its Lien on the Collateral;
(3iii) 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) 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 Subordinated Second Lien Obligations and the Collateral; and
(v) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.01(a)(i). The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentsetoff) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 3.01(a)(i). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a3.01(a), 6.3(b6.03(b) and this Section 3.1(c3.01(c), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.01(a) and (c) and Section 6.3(b6.03(b):
(1i) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Finance Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3iii) the Subordinated Second Lien Collateral Trustee Agent, for itself and on behalf of the Second Lien Claimholders, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Finance Documents.
(e) Except as specifically set forth in Sections 3.1(a3.01(a) and (d), the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company Borrower or any other Grantor Loan Party that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a3.01(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupmentsetoff) 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: Stockholders Agreement
Exercise of Remedies. (a) Until all principal, interest and other obligations under the Discharge First Tranche Notes have been paid in full in cash:
(1) except for non-cash payments permitted by Section 3(c) of First Lien Obligations has occurredthis Amendment, whether the Investors holding Subsequent Tranche Notes will not take from or not any Insolvency or Liquidation Proceeding has been commenced by or against for the account of the Company or any other Grantor, by set-off or in any other manner, the Subordinated Collateral Trustee whole or any part of any moneys which may now or hereafter be owing by the Company or any other Grantor with respect to the obligations under the Subsequent Tranche Notes; (2) will not s▇▇ for payment of, or initiate or participate with others in any suit, action or proceeding against the Company or any other Grantor to (x) enforce payment of or collect the whole or any part of the obligations under the Subsequent Tranche Notes (which shall include, for the avoidance of doubt, any demand or collection of payment at maturity), or (y) commence judicial enforcement of any of the rights and remedies under the Subordinated Lien Claimholders:Transaction Documents or applicable law with respect to the obligations under the Subsequent Tranche Notes; and (3) will not exercise any put option or cause the Company or any other Grantor to honor any redemption or mandatory prepayment obligation under any Transaction Document with respect to the obligations under the Subsequent Tranche Notes;
(1ii) will not exercise or seek to exercise any rights or remedies with respect to any Lien on any Collateral (including as defined in the exercise Security Agreement) to secure the performance of any right of setoff or any right the obligations under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) Subsequent Tranche Notes or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2iii) will not contest, protest protest, object to, or object take any action to hinder or delay (including taking action to commence an involuntary Insolvency or Liquidation Proceeding) any foreclosure proceeding or action brought by the Investors holding First Lien Collateral Agent or any First Lien Claimholder Tranche Notes or any other exercise by the Investors holding First Lien Collateral Agent or any First Lien Claimholder Tranche Notes of any rights and remedies relating to the Collateral securing the obligations under the First Lien Documents or otherwiseTranche Notes; and
(3iv) subject to their rights under clause (a)(1) above, will not object to the forbearance by the Investors holding First Lien Collateral Agent or the First Lien Claimholders Tranche Notes from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; provided, that, in each the case so long as of clause (iii) above, the Liens security interests granted to secure the Subordinated Lien Obligations obligations under the Subsequent Tranche Notes shall attach to any remaining proceeds resulting from actions taken by the holders of the Subordinated Lien Claimholders attach First Tranche Notes in accordance with this Amendment after application of such proceeds to pay in full in cash any and all principal, interest and other obligations under the proceeds thereof subject to the relative priorities described in Section 2First Tranche Notes.
(b) Until the Discharge payment in full in cash of all principal, interest and other obligations under the First Lien Obligations Tranche Notes has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Investors holding First Lien Collateral Agent and the First Lien Claimholders Tranche Notes shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment set off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositionDisposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholderholder of Subsequent Tranche Notes; provided thatprovided, that the Lien securing the Subordinated Lien Obligations obligations under the Subsequent Tranche Notes shall remain on the remaining proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 23 after application of such proceeds to the extent necessary to effect the payment in full in cash of all principal, interest and other obligations under the First Tranche Notes. In exercising rights and remedies with respect to the Collateral, the Holders of First Lien Collateral Agent and the First Lien Claimholders Tranche Notes may enforce the provisions of the First Lien Transaction 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 any agent appointed by them to sell or otherwise dispose of 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 creditor under the UCC (as defined in the Security Agreement) and of a secured creditor under Bankruptcy the Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality In furtherance of the foregoing, unless and for avoidance of doubt, until the Discharge payment in full in cash of all principal, interest and other obligations under the First Lien Obligations Tranche Notes has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained term “Required Secured Parties” set forth in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) Security Agreement shall be deemed to restrict in any way mean the rights and remedies holders of more than 50% of the aggregate outstanding principal balance of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsTranche Notes.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Note and Warrant Purchase Agreement (CareView Communications Inc)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Senior 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:,
(1i) neither the Second Priority Representative nor any Second Priority Debt Party will not (A) exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Collateral (including the exercise in respect of any right of setoff or any right under any lockbox agreementSecond Priority Debt Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
; provided, that, subject to extension as a result of any Permitted Delay, the 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 (such period, as extended as a result of any Permitted Delay, the “Standstill Period”) of 180 consecutive days has elapsed from the date of delivery of written notice from the Second Priority Representative to the Senior Representative stating that (1) an Event of Default (as defined under the Second Priority Debt Documents) has occurred and is continuing thereunder and (2) will 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, (B) except to the extent not prohibited herein, contest, protest or object to any foreclosure proceeding or action brought with respect to the Collateral by the First Lien Collateral Agent Senior Representative or any First Lien Claimholder Senior Secured Party in respect of the Senior Obligations, the exercise of any right by the Senior Representative or any Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Representative or any Senior 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 First Lien Claimholder such party of any rights and remedies relating to the Collateral under the First Lien Senior Debt Documents or otherwise; and
otherwise in respect of the Senior Obligations, (3C) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action during the Standstill Period or any other exercise of any rights or remedies relating to the CollateralCollateral in respect of Senior Obligations or (D) credit bid (it being understood, for the avoidance of doubt, that a credit bid which includes a cash portion sufficient to cause a Discharge of Senior Obligations will not be precluded); provided further, after the expiration of the Standstill Period, so long as neither the Senior Representative nor any of the Senior Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral and any acceleration of the Second Priority Debt Obligations has not been rescinded, in each case the event that and for so long as the Liens granted Second Priority Debt Parties (or the Second Priority Representative on their behalf) have commenced actions to secure the Subordinated enforce their Lien Obligations with respect to all or any material portion of the Subordinated Lien Claimholders attach Collateral to the proceeds thereof subject extent permitted hereunder and are diligently pursuing such actions (it being understood that this proviso shall not constitute a waiver by the Senior Representative or the Senior Secured Parties of the provisions of Article VI), neither the Senior Secured Parties nor the Senior Representative shall take any action of a similar nature with respect to such Collateral so long as the relative priorities described in Section 2.
other provisions of this Agreement (bincluding the turnover provisions of Article VI) Until are complied with; and provided further that (x) the Discharge of First Lien Obligations has occurred, whether or not Standstill Period shall be tolled for so long as any Insolvency or Liquidation Proceeding has been commenced by or against the Company automatic stay or any other Grantorstay or other order prohibiting the exercise of remedies by the Senior Representative or the Senior Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction and (y) the period set forth in the immediately preceding proviso shall be tolled for so long as any automatic stay or any other stay or other order prohibiting the exercise of remedies by the Second Priority Representative or the Second Priority Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction, and
(ii) except as otherwise provided herein, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-offsetoff, recoupment and the right to credit bid their debt, except that the Second Priority Debt Parties shall have the credit bidding rights set forth in Section 3.01(a)(i)(D)) and, in that connection, subject to Section 5.15.01, to make determinations regarding the release, disposition, disposition or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second Priority Representative or any Subordinated Lien ClaimholderSecond Priority Debt Party; provided thatprovided, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described however, that (A) in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
, any Second Priority Representative may file a claim, proof of claim, or statement of interest with respect to the Second Priority Debt Obligations under the Second Priority Debt Facility, (2B) any Second Priority Representative may take any action (not adverse to the priority status of the prior Liens on the Collateral securing the First Lien Obligations, Senior Obligations or the rights of any First Lien Collateral Agent the Senior Representative or the First Lien Claimholders Senior 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 Collateral;
(3) file any necessary responsive or defensive pleadings in opposition to any motionon, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with (C) the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations Second Priority Representative and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated Lien Claimholders Second Priority Debt Parties may exercise their rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.extent provided in
Appears in 1 contract
Sources: Intercreditor Agreement (Sundance Energy Australia LTD)
Exercise of Remedies. (a) Until the Discharge date on which all the Senior Obligations shall have been paid in full, the Senior Representative, in its sole discretion and to the exclusion of First Lien Obligations has occurredthe Subordinated Representatives, shall have, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against default under the Company Indenture or any other GrantorGuarantor Indenture shall have occurred and be continuing and both before and after the commencement of any proceeding referred to in Section 8.03(a), the Subordinated Collateral Trustee sole and exclusive right (as between the Senior Representative, on the one hand, and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreementRepresentatives, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject other) to direct the relative priorities described in Section 2. In exercising rights and remedies Security Trustee to take all action with respect to the Collateral, including, without limitation, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions right to exercise or direct voting or other consensual rights, to foreclose or forebear from foreclosure in respect of the First Lien Documents Collateral and exercise remedies thereunderto accept the Collateral in full or partial satisfaction of any Senior Obligation, 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeRepresentatives agree that, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Senior Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided have been paid in Sections 3.1(a), 6.3(b) and this Section 3.1(c)full, the sole only right of the Subordinated Collateral Trustee and Creditors under this Agreement is for the Subordinated Lien Claimholders with respect Obligations to be secured by the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein provided for herein and to receive a share of the proceeds thereofof the Collateral, if any, after the Discharge of First Lien Obligations has occurred.
(db) Subject The Subordinated Representatives agree that, so long as any of the Senior Obligations shall remain unpaid, they and the Subordinated Creditors will not commence, or join with any creditor other than the Security Trustee and the Senior Creditors in commencing, any enforcement, collection, execution, levy or foreclosure proceeding with respect to Sections 3.1(c) the Collateral or proceeds of Collateral. Upon request by the Senior Representative, the Subordinated Representatives and Section 6.3(b):the Subordinated Creditors will, at the expense of the Issuer, join in enforcement, collection, execution, levy or foreclosure proceedings and otherwise cooperate fully in the maintenance of such proceedings by the Security Trustee, including without limitation by executing and delivering all such consents, pleadings, releases and other documents and instruments as the Security Trustee may reasonably request in connection therewith, it being understood that the conduct of such proceedings shall at all times be under the exclusive control of the Security Trustee.
(1c) The Subordinated Representatives agree, upon written request by the Subordinated Collateral TrusteeSenior Representative, for itself to release the liens and on behalf security interests in favor of the Subordinated Lien ClaimholdersCreditors in any Collateral and to execute and deliver all such directions, agrees that consents, pleadings, releases and other documents and instruments as the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderSenior 42 37 Representative may reasonably request in connection therewith, including upon any sale, lease, exchange, transfer or other disposition of the Collateralsuch Collateral or part thereof in accordance with, whether by foreclosure or otherwise;for application of proceeds pursuant to, Section 8.01(a).
(2d) the The Subordinated Collateral TrusteeRepresentatives agree that neither they nor any Subordinated Creditors will contest, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor bring (or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether join in) any action or failure proceeding for the purpose of contesting, the validity, perfection or priority of, or seeking to act by or on behalf avoid, the rights of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Creditors in or with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsCollateral.
(e) Except as specifically set forth Nothing in Sections 3.1(a) and (d), the foregoing affects any Collateral for which neither the Senior Creditors nor the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations Creditors are subject to this AgreementSecured Parties.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Security Trust Agreement (Aerco LTD)
Exercise of Remedies. (a) 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 GrantorLoan Party, the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 150 days has elapsed since the later of (including i) the date on which a Second Lien Representative declared the existence of any Event of Default under (and as defined in) any Second Lien Loan Document; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declaration of such Event of Default (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Claimholder take any Enforcement Action with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, (i) any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Claimholders shall have commenced and be diligently pursuing in good faith an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative), (ii) any Loan Party shall be subject to any Insolvency or Liquidation Proceeding (provided that in any such Insolvency or Liquidation Proceeding any Second Lien Representative, Second Lien Collateral Agent or Second Lien Claimholder may take any action expressly permitted by Section 3.1(c), Section 3.1(e) or Section 6 hereof) or (iii) solely and exclusively with respect to the ABL Priority Collateral any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Claimholders are stayed by the ABL Intercreditor Agreement from pursuing exercise of foreclosurerights and remedies with respect to the ABL Priority Collateral (it being understood and agreed that Second Lien Claimholders shall be permitted to exercise rights and remedies with respect to the Term Loan Priority Collateral upon expiration of the Standstill Period (subject to the foregoing clauses (i) and (ii));
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder); and
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the any First Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative or First Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Loan Party, subject to Section 3.1(a)(1), the Company or any other GrantorFirst Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, rights and exercise remedies with respect to the Collateral (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholder; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative or First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorLoan Party;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations;
(7) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action; or
(8) object to any proposed acceptance of Collateral by any First Lien Representative, First Lien Collateral Agent or other First Lien Claimholder pursuant to Section 9-620 of the UCC, in a manner not inconsistent with the provisions of this Agreement. The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Second Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy with respect to any Collateral (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except as expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Claimholders represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a) and 3.1(c) and Section 6.3(b):
(1) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders represented by it will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the CollateralCollateral that is prohibited hereunder, whether by foreclosure or otherwise;
(2) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Second Lien Representative or the Subordinated such Second Lien Collateral Agent and such Second Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated each Second Lien Representative and each Second Lien Collateral Trustee Agent, for itself and on behalf of each other Second Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Second Lien Collateral Documents or any other Subordinated Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)this Agreement, the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable lawlaw (other than initiating in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupmentrecoupment against the Collateral) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: First Lien/Second Lien Intercreditor Agreement (Franchise Group, Inc.)
Exercise of Remedies. (a) 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 Borrower or any other Grantor, the Subordinated Collateral Trustee Second Lien Creditor and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee Second Lien Creditor or any Subordinated Second Lien Claimholder Secured Party 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 Creditor may exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (i) the date on which the Second Lien Creditor declared the existence of any Event of Default under the applicable Second Lien Loan Document and demanded the repayment of all the principal amount of any Second Lien Obligations with respect to such Second Lien Loan Document; and (ii) the date on which the First Lien Collateral Agent received notice from the Second Lien Creditor of such declaration of an Event of Default (the “Standstill Period”); provided, further, however, that, notwithstanding anything herein to the contrary, in no event shall the Second Lien Creditor or any Second Lien Secured Party exercise any rights or remedies with respect to any Collateral if, notwithstanding the expiration of the Standstill Period, the First Lien Collateral Agent or First Lien Secured Parties shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Creditor); provided, however, that, if at any time after the expiration of the Standstill Period, neither the First Lien Collateral Agent nor any First Lien Secured Party shall have commenced and be diligently pursuing any action or proceeding with respect to the exercise of its rights and remedies to enforce the Lien granted under the First Lien Collateral Documents on any material portion of the Collateral, the Second Lien Creditor may commence any action or proceeding with respect to the exercise of rights and remedies to enforce the Lien granted under the Second Lien Collateral Documents with respect to all or any material portion of the Collateral to the extent otherwise permitted hereunder and, for so long as the Second Lien Creditor is diligently pursuing such rights or remedies, neither any First Lien Secured Party nor the First Lien Collateral Agent shall exercise any rights or remedies with respect to the Liens granted under the First Lien Collateral Documents with respect to such Collateral; provided, however, that the Second Lien Creditor complies with all other provisions of this Agreement (including Section 4.2);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder Secured Parties or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Secured Parties of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 Borrower or any other Grantor, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Creditor or any Subordinated Second Lien Claimholder; provided that, the Secured Party. The First Lien securing the Subordinated Lien Obligations Collateral Agent shall remain on the proceeds of such Collateral released or disposed of subject provide at least five (5) days notice to the relative priorities described in Section 2Second Lien Creditor of its intent to exercise and enforce its rights or remedies with respect to the Collateral. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee Second Lien Creditor and any Subordinated Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated applicable Second Lien Obligations; provided provided, however, that an Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor;
(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 Secured Parties to exercise 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 Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated applicable Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under any Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with 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 Subordinated Second Lien Obligations and the Collateral; and
(6) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1). The Subordinated Collateral TrusteeSecond Lien Creditor, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 3.1(a)(1). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b3.1(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee Second Lien Creditor and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1) the Subordinated Collateral TrusteeSecond Lien Creditor, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Collateral Trustee Second Lien Creditor and the Subordinated Second Lien Claimholders Secured Parties will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral TrusteeSecond Lien Creditor, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated Second Lien Claimholders Secured Parties may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders Secured Parties is adverse to the interest of the Subordinated Second Lien ClaimholdersSecured Parties; and
(3) the Subordinated Collateral Trustee Second Lien Creditor hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Debt Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Second Lien Creditor or any Subordinated Second Lien Claimholders Secured Parties of the required payments of interest, principal and other amounts owed in respect of the Subordinated applicable Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee Second Lien Creditor or any Subordinated Second Lien Claimholders Secured Party of rights or remedies as a secured creditor (including set-off and recoupmentoff) as to any Collateral 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 Secured Parties may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Uranium Resources Inc /De/)
Exercise of Remedies. (a) 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 Subordinated Collateral Trustee Second Lien Notes Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Lien Notes Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (including i) the date on which the Second Lien Notes Agent declared the existence of any action Event of foreclosureDefault (and as defined in) under any Second Lien Notes Document and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Collateral Agent received notice from the Second Lien Notes Agent of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Notes Agent or any Second Lien Claimholder take any Enforcement Action with respect to the Collateral (i) if, notwithstanding the expiration of the Standstill Period, the First Lien Collateral Agent or the First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Notes Agent) or (ii) if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding;
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by the First Lien Collateral Agent or any First Lien Claimholder); and
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the First Lien Collateral Agent or the any First Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted First Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-offset‑off, recoupment and the right to credit bid their debt) and), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Notes Agent or any Subordinated other Second Lien Claimholder; provided that, that any proceeds received by the First Lien securing the Subordinated Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Notes Agent or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC or any applicable law and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee Second Lien Notes Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) 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 Subordinated Second Lien Obligations and the Collateral. The Subordinated Collateral Trustee; provided that no filing of any claim or vote, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection pleading related to such claim may be inconsistent with the provisions of this Agreement; and
(5) exercise any of any right its rights or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders remedies with respect to the Collateral is to hold a Lien on after the Collateral pursuant to termination of the Subordinated Lien Collateral Documents for the period and Standstill Period to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurredpermitted by Section 3.1(a)(1).
(d) Subject to Sections 3.1(a), 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral TrusteeSecond Lien Notes Agent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, agrees that the Subordinated Collateral Trustee Second Lien Notes Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral TrusteeSecond Lien Notes Agent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated Collateral Trustee Second Lien Notes Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Notes Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee The Second Lien Notes Agent and the Subordinated other 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Second Lien Notes Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor), in each case, in a manner that is not inconsistent with this Agreement; provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d3.1(d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Second Lien Notes Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations to the extent not prohibited by the First Lien Credit Agreement (as in effect on the date hereof) so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee Second Lien Notes Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off set‑off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Collateral Agent or the any other First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) Until So long as the Discharge of 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) the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders:
(1A) from the date hereof until the occurrence of the Second Lien Enforcement Date, will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Lien held by it under the Second Lien Collateral (including the exercise of any right of setoff Documents or any right under any lockbox agreement, account control agreement, landlord waiver other Second Lien Loan Document or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)otherwise;
(2B) will not contest, protest or object to to, or otherwise interfere with, hinder, or delay, any foreclosure proceeding or action brought Enforcement Action by the First Lien Collateral Administrative Agent or any First Lien Claimholder or any other exercise by Claimholder, provided that the First respective interests of the Second Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating Claimholders attach to the Collateral under proceeds thereof, subject to the First Lien Documents or otherwise; relative priorities described in Section 2 and Section 4: and
(3C) subject to their the rights of the Second Lien Administrative Agent under clause (a)(1iXA) above, will not contest, protest or object to the forbearance by the First Lien Collateral Administrative 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof Enforcement Action;
(ii) subject to the relative priorities described in Section 2.
(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 Grantor5.1, the First Lien Collateral Administrative Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) commence and, subject to Section 5.1if applicable, to maintain an Enforcement Action and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated Second Lien Claimholder; provided that:
(A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Second Lien Administrative Agent, on behalf of itself and the Second Lien Claimholders, may file claims or CHARl\1175377v2 statements of interest with respect to all or any portion of the Second Lien Obligations,
(B) the Second Lien Administrative Agent, on behalf of itself and the Second Lien Claimholders, agrees that it will not retain any Collateral or any proceeds of Collateral in connection with any Enforcement Action against any Collateral, and that any Collateral or proceeds taken or received by it in connection with any Enforcement Action will be applied in accordance with Section 4.2 unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 6.8;
(C) the Second Lien Administrative Agent and 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 Administrative Agent or 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) in any Insolvency or Liquidation Proceeding, the Second Lien Administrative Agent and 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement;
(E) in any Insolvency or Liquidation Proceeding, the Second Lien Administrative Agent and Second Lien Claimholders shall be entitled to vote on any plan of reorganization, to the extent consistent with the provisions hereof;
(F) the Second Lien Administrative Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date; and
(G) the Second Lien Collateral Agent may take any action (not adverse to the Liens on the Collateral securing the Subordinated First Lien Obligations shall remain Obligations, or the rights of any First Lien Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof and not otherwise inconsistent with the terms of this Agreement) in order to preserve or protect its Lien on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2Collateral. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Administrative Agent and the First Lien Claimholders may enforce the provisions of the 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 the First Lien Administrative Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.. CHARl\1175377v2
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated The Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAdministrative Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral, and that any Collateral in its capacity as a creditor, or such proceeds taken or received by it will be paid over to the First Lien Administrative Agent pursuant to Section 4.2. unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 6.8. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(aSection 3.1(a)(h”), 6.3(b) and this Section 3.1(c), . the sole right of the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Loan Documents and applicable law.
(dc) Subject to Sections 3.1(cthe proviso to clauses (i) and (ii) of Section 6.3(b):
(1) ▇.▇▇), the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that (i) the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderLoan Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise with respect to the First Lien Collateral to object to the manner or order in which the First Lien Collateral Administrative Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; andCollateral.
(3d) the Subordinated Collateral Trustee The Second Lien Administrative Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Administrative Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth Notwithstanding anything to the contrary in Sections 3.1(a) and (d)this Section 3.1, if the Subordinated Collateral Trustee and the Subordinated First Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company Administrative Agent or any other Grantor that First Lien Lender has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms instituted and is diligently pursuing any Enforcement Action against any Collateral, then each of the Subordinated Second Lien Documents Administrative Agent and applicable lawthe Second Lien Lenders agrees that it will not institute any Enforcement Action against any Collateral; provided that in if the event that Second Lien Administrative Agent or any Subordinated 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 Subordinated Lien ObligationsLender has already initiated any Enforcement Action against any Collateral, such judgment Lien Person shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreementimmediately suspend such Enforcement Action.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Credit Agreement
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Obligations Senior Indebtedness has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantor, Obligor:
(i) the Subordinated Collateral Trustee Term Administrative Agent and the Subordinated Lien Term Claimholders:
(1x) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Collateral (including including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or letter in-lieu, bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee Term Administrative Agent or any Subordinated Lien Term Claimholder is a party) ), or institute any action or proceeding with respect to such rights or remedies against the Collateral (including any action of foreclosure); provided, however, that the Term Administrative Agent may exercise any or all such rights and remedies after (1) the passage of a period of 179 days from the date of delivery of a notice in writing to the Senior Indebtedness Representative that an Event of Default (as defined in the Second Lien Term Loan Agreement) has occurred under the Term Credit Documents (with respect to each individual Event of Default, each a “Standstill Period”) which notice may only be delivered following the occurrence of and during the continuation of an Event of Default (as defined in the Second Lien Term Loan Agreement) under the Term Credit Documents or (2) upon payment in full in cash of all Senior Indebtedness (in the case of principal, up to the Maximum Senior Revolving Credit Amount); provided, further, however, notwithstanding anything herein to the contrary, in no event shall the Term Administrative Agent or any Term Claimholder exercise or continue to exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of any outstanding Standstill Period, the Senior Indebtedness Representative or Senior Revolving Claimholders shall have commenced and are diligently pursuing the exercise of any of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Term Administrative Agent);
(2y) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent Senior Indebtedness Representative or any First Lien Senior Revolving Claimholder or any other exercise by the First Lien Collateral Agent Senior Indebtedness Representative or any First Lien Claimholder Senior Revolving Claimholder, of any rights and remedies relating to the Collateral under the First Lien Senior Revolving Credit Documents or otherwise; and
(3z) subject to their its rights under clause (a)(1i)(x) above, will not object to the forbearance by the First Lien Collateral Agent Senior Indebtedness Representative or the First Lien Senior Revolving Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Lien Term Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.2 hereof; and
(bii) 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 Senior Indebtedness Representative and the First Lien Senior Revolving Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment set off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral as provided for under the Senior Revolving Credit Documents without any consultation with or the consent of the Subordinated Collateral Trustee Term Administrative Agent or any Subordinated Lien Term Claimholder; provided thatprovided, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Obligor, the Lien Term Administrative Agent may file a claim or statement of interest with respect to the Subordinated Obligations, (B) the Term Administrative Agent may accelerate the Subordinated Obligations and take any action (not adverse to the prior Liens on the Collateral securing the Subordinated Senior Indebtedness, or the rights of the Senior Indebtedness Representative or any Senior Revolving Claimholder to exercise remedies in respect thereof) in order to preserve or protect its Lien Obligations shall remain on the proceeds Collateral, (C) the Term 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 such Collateral released the claims of the Term 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 Term Claimholders shall be entitled to file any pleadings, objections, motions or disposed agreements which assert rights or interests available to unsecured creditors of subject the Obligors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement, (E) the Term 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 relative priorities described in Section 2Subordinated Obligations and the Collateral, (F) the Term Administrative Agent or any Term Claimholder may exercise any of its rights or remedies with respect to the Collateral after the termination of each then outstanding Standstill Period to the extent permitted by clause (i)(x) above and (G) the Term Administrative Agent may charge default interest pursuant to the terms of the Second Lien Term Loan Agreement. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent Senior Indebtedness Representative and the First Lien Senior Revolving Claimholders may enforce the provisions of the First Lien Documents Senior Revolving Credit Documents, and the Term Administrative Agent and the Term Claimholders may enforce the provisions of the Term Credit Documents, in each case, as applicable, 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 Collateral upon foreclosure, to incur reasonable expenses (including, without limitation, all reasonable legal fees) in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until Except as set forth in Section 5.4, so long as the Discharge of 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) the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders:
(1A) from the date hereof until the occurrence of the Second Lien Enforcement Date, will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Lien held by it under the Second Lien Collateral (including the exercise of any right of setoff Documents or any right under any lockbox agreement, account control agreement, landlord waiver other Second Lien Credit Document or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);otherwise; and
(2B) will not contest, protest or object to to, or otherwise interfere with, hinder, or delay, any foreclosure proceeding or action brought Enforcement Action by the First Lien Collateral Administrative Agent or any First Lien Claimholder or any other exercise by Claimholder, provided that the First respective interests of the Second Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating Claimholders attach to the Collateral under proceeds thereof, subject to the First Lien Documents or otherwiserelative priorities described in Section 2 and Section 4; and
(3C) subject to their the rights of the Second Lien Administrative Agent under clause (a)(1i)(A) above, will not contest, protest or object to the forbearance by the First Lien Collateral Administrative 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof Enforcement Action; and
(ii) subject to the relative priorities described in Section 2.
(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 Grantor5.1, the First Lien Collateral Administrative Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) commence and, subject to Section 5.1if applicable, to maintain an Enforcement Action and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated Second Lien Claimholder; provided provided, that:
(A) in any Insolvency or Liquidation Proceeding commenced by or against Company or any other Grantor, the Second Lien Administrative Agent may file a claim or statement of interest with respect to the Second Lien Obligations,
(B) the Second Lien Administrative Agent may take any action (not adverse to the Liens on the Collateral securing the Subordinated First Lien Obligations, or the rights of any First Lien Administrative Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to preserve or protect its Lien on the Collateral,
(C) 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) in any Insolvency or Liquidation Proceeding, 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement,
(E) in any Insolvency or Liquidation Proceeding, 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,
(F) the Second Lien Claimholders shall remain be entitled, in any Insolvency or Liquidation Proceeding, to vote on any plan of reorganization (including without limitation the proceeds right to vote to accept or reject any plan of partial or complete liquidation), provided, it is understood and agreed that nothing in a plan of reorganization is meant to supersede the priorities set forth herein with respect to liens on and rights against the Collateral, which priorities and rights shall survive any such plan of reorganization,
(G) the Second Lien Administrative Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date; and
(I) the Second Lien Claimholders may bid for and purchase Collateral at any private or judicial foreclosure sale of such Collateral released or disposed of subject to initiated by the relative priorities First Lien Claimholders (the actions described in Section 2this proviso being referred to herein as “Permitted Second Lien Actions”). In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Administrative Agent and the First Lien Claimholders may enforce the provisions of the 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 the First Lien Administrative Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated The Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAdministrative Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive retain any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off Enforcement Action against any Collateral, and recoupment) with respect to that any Collateral in its capacity as a creditor, unless and until or proceeds taken or received by it will be paid over to the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, Administrative Agent pursuant to Section 4.2 unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred6.8.
(dc) Subject to Sections 3.1(c) and Section 6.3(b):
(1) Except for Permitted Second Lien Actions, the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that (i) the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderCredit Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner or order in which the First Lien Collateral Administrative Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until So long as the Discharge of 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) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1A) from the date hereof until the occurrence of the Second Lien Enforcement Date (such period, the “Standstill Period”), will not exercise or seek to exercise any rights or remedies (including any right of set-off or recoupment) with respect to any Collateral (including including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter collection agreement or similar agreement or arrangement to which the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder is a party) or institute or commence (or join with any other Person in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including, without limitation, any Insolvency or Liquidation Proceeding) with respect to such rights or remedies (including any action of foreclosure)Lien held by it under the Second Lien Collateral Documents;
(2B) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Claimholder, of any rights and remedies relating to the Collateral under the First Lien Documents Collateral Documents, including, but not limited to, any motion by the First lien Collateral agent to sell the Collateral pursuant to Section 363 of the Bankruptcy Code, provided that the respective interests of the Second Lien Claimholders attach to the proceeds thereof, subject to the relative priorities described in Article II; provided, however, that this Section 3.01(B) shall constitute consent by the Second Lien Collateral Agent and the Second Lien Claimholders pursuant to Section 363(f) of the Bankruptcy Code to the Section 363 sale of any or otherwiseall of the Collateral; and
(3C) subject to their the rights of the Second Lien Collateral Agent under clause (a)(1i)(A) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof ; and
(ii) subject to the relative priorities described in Section 2.
(b) Until 5.01, until the Discharge of the First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorObligations, the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided provided, that
(A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Second Lien Collateral Agent may file a claim or statement of interest with respect to the Second Lien Obligations;
(B) the Second Lien Collateral Agent may take any action (not adverse to the Liens on the Collateral securing the Subordinated 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 preserve or protect its Lien on the Collateral;
(C) the Second Lien Claimholders shall be entitled to 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 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 Debtor Relief Law or applicable non-bankruptcy law;
(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;
(F) the Second Lien Claimholders shall remain be entitled, in any Insolvency or Liquidation Proceeding, to vote on the proceeds any plan of such Collateral released or disposed of subject reorganization, to the relative priorities described in Section 2extent consistent with the provisions hereof; and
(G) the Second Lien Collateral Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine advisable in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them the First Lien Collateral Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Debtor Relief Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 The Second Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated the Second Lien Claimholder, Claimholders) agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral, and that any Collateral in its capacity as a creditoror proceeds taken or received by it will be paid over to the First Lien Collateral Agent pursuant to Section 4.02, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in Section 3.01(a)(ii) and Section 6.07. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this the proviso in Section 3.1(c3.01(a)(ii), the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 the First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Documents and applicable law.
(dc) Subject to Sections 3.1(cthe proviso in Section 3.01(a)(ii) and Section 6.3(b):
6.01, (1i) the Subordinated Second Lien Collateral Trustee, for itself and Agent (on behalf of itself and the Subordinated Second Lien Claimholders, ) agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderCollateral Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Second Lien Collateral Trustee, for itself and Agent (on behalf of itself and the Subordinated Second Lien Claimholders, ) hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner or order in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Collateral.
(d) The Second Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Collateral Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 (Prospect Medical Holdings Inc)
Exercise of Remedies. Subject to Section 16 hereof, we will be entitled to exercise any one or more of the following remedies in our sole discretion in the event of any default by you under the terms of the Lease or the Franchise Agreement:
(a) Until to take possession of the Discharge of First Lien Obligations has occurredSite, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantorpart thereof, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise personally, or seek to exercise any rights by our agents or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)attorneys;
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the Discharge to, in our discretion, without notice and with or without process of First Lien Obligations has occurredlaw, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company enter upon and take and maintain possession of all or any other Grantorpart of the Site, together with all of your furniture, fixtures, inventory, books, records, papers and accounts;
(c) to exclude you, your agents or employees from the First Lien Collateral Agent Site;
(d) as attorney-in-fact for you, or in our own name, and under the First Lien Claimholders shall have powers herein granted, to hold, operate, manage and control the exclusive right EVOS® Restaurant and conduct the business, if any, thereof, either personally or through our agents, with full power to enforce use such legally rectifiable measures which may, in our sole discretion, be deemed proper or necessary to cure such default, including actions of forcible entry or detainer and actions in distress of rent, hereby granting full power and authority to us to exercise each and every of the rights, exercise remedies privileges and powers herein granted at any and all times hereafter;
(including set-offe) to cancel or terminate any unauthorized agreements or subleases you entered into, recoupment and for any cause or ground which would entitle us to cancel the right same;
(f) to credit bid their debt) disaffirm any unauthorized agreement, sublease or subordinated lien and, subject to Section 5.1with Lessors consent, which shall not be unreasonably withheld, conditioned, or delayed, to make determinations regarding the releaseall necessary or proper repairs, dispositiondecorations, or restrictions with respect renewals, replacements, alterations, additions, betterments and improvements to the Collateral without Site that are in our sole discretion judicious;
(g) to insure and reinsure the same for all risks incidental to our possession, operation and management thereof; and/or
(h) notwithstanding any consultation with or provision of any agreement to the consent contrary, to declare all of your rights but not obligations under the Franchise Agreement to be immediately terminated as of the Subordinated Collateral Trustee or date of your default under the Lease. If Franchisor exercises its rights hereunder and removes fixtures and personalty from the Site, Franchisor shall repair any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 damage caused by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses Franchisor in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdictionremoval.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Collateral Assignment and Assumption of Lease (Healthy Fast Food Inc)
Exercise of Remedies. (a) Until the Discharge of First Lien Priority Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien ClaimholdersSecond Priority Secured Parties:
(1i) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Priority Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (including i) the date on which the Second Priority Collateral Agent declared the existence and continuation of any action “Event of foreclosureDefault” under any Second Priority Indenture Documents and demanded the repayment of all the principal amount of any Second Priority Obligations and (ii) the date on which the First Priority Collateral Agent received written notice from the Second Priority Collateral Agent of such declaration of an “Event of Default” or “event of default,” as applicable, (the “Standstill Period”) (provided that the Second Priority Collateral Agent shall have given the First Priority Collateral Agent at least 10 days written notice prior to such Enforcement Action, which notice may be given during the pendency of the applicable Standstill Period); provided, further, that notwithstanding anything herein to the contrary, in no event shall the Second Priority Collateral Agent or any Second Priority Secured Party exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, the First Priority Collateral Agent or First Priority Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies (or shall have sought or requested relief or modification of the automatic stay or any other stay in an Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Priority Collateral Agent);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Priority Collateral Agent or any First Lien Priority Claimholder or any other exercise by the First Lien Priority Collateral Agent or any First Lien Priority Claimholder of any rights and remedies relating to the Collateral under the First Lien Priority Loan Documents or otherwise; and;
(3iii) subject to their rights under clause (a)(1a)(i) above, will not object to the forbearance by the First Lien Priority Collateral Agent or the First Lien Priority Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted First Priority Collateral Agent in excess of those necessary to secure achieve a Discharge of First Priority Obligations are distributed in accordance with the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof UCC and other applicable law, subject to the relative priorities described herein;
(iv) will not take or cause to be taken any action, the purpose or effect of which is to make any Lien in Section 2respect of any Second Priority Obligation pari passu with or senior to, or give any Second Priority Secured Party any preference or priority relative to, the Liens with respect to the First Priority Obligations or the First Priority Claimholders; and
(v) will not institute any suit or other proceeding or assert in any suit, Insolvency or Liquidation Proceeding or other proceeding any claim against any First Priority Claimholder or First Priority Collateral Agent seeking damages from or other relief by way of specific performance, injunction or otherwise, with respect to, and no First Priority Claimholder or First Priority Collateral Agent shall be liable to the Second Priority Collateral Agent or any Second Priority Secured Party for, any action taken or omitted to be taken by such First Priority Claimholder or First Priority Collateral Agent with respect to any Collateral or pursuant to the First Priority Loan Documents.
(b) Until the Discharge of First Lien Priority Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(i), the First Lien Priority Collateral Agent and the First Lien Priority Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-set off, recoupment and the right to “credit bid bid” their debt, except that the Second Priority Collateral Agent and the Second Priority Secured Parties shall have the “credit bid” rights set forth in Section 3.1(c)(vi)) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Priority Collateral Trustee Agent or any Subordinated Lien ClaimholderSecond Priority Secured Party; provided thatthat any proceeds received by the First Priority Collateral Agent in excess of those necessary to achieve a Discharge of First Priority Obligations are distributed in accordance with the UCC and other applicable law, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2herein. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Priority Collateral Agent and the First Lien Priority Claimholders may enforce the provisions of the First Lien Priority 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 in compliance with any applicable law and without consultation with or consent of the Second Priority Collateral Agent or any Second Priority Secured Party and regardless of whether any such exercise is adverse to the interest of any Second Priority Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Priority Collateral Trustee Agent and any Subordinated Lien Claimholder Second Priority Secured Party may:
(1i) file a claim or statement of interest with respect to the Subordinated Lien Second Priority Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Priority Obligations, or the rights of any First Lien Priority Collateral Agent or the First Lien Priority Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien ClaimholdersSecond Priority Secured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Lien Second Priority Obligations and the Collateral; provided that no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Priority Collateral Agent or any Second Priority Secured Party may be inconsistent with the provisions of this Agreement;
(v) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i); and
(vi) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Priority Collateral Agent or any First Priority Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Priority Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Priority Obligations. The Subordinated Second Priority Collateral TrusteeAgent, on behalf of itself and each Subordinated Lien Claimholderthe Second Priority Secured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Priority Obligations has occurred, except in connection with any foreclosure expressly permitted by this Agreement to the extent the Second Priority Collateral Agent and the other Second Priority Secured Parties are permitted to retain the proceeds thereof in accordance with this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Priority Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Claimholders Second Priority Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Second Priority 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 First Lien Priority Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1i) the Subordinated Second Priority Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersSecond Priority Secured Parties, agrees that the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Claimholders Second Priority Secured Parties will not take any action that would hinder any exercise of remedies under the First Lien Priority Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Priority Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersSecond Priority Secured Parties, hereby waives any and all rights it or the Subordinated Lien Second Priority Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Priority Collateral Agent or the First Lien Priority Claimholders seek to enforce or collect the First Lien Priority Obligations or the Liens securing the First Lien Priority Obligations granted in any of the First Lien Priority Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Priority Collateral Agent or First Lien Priority Claimholders is adverse to the interest of the Subordinated Lien ClaimholdersSecond Priority Secured Parties; and
(3iii) the Subordinated Second Priority Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Second Priority Security Documents or any other Subordinated Lien Second Priority Indenture Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Priority Collateral Agent or the First Lien Priority Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Priority Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)To the extent not inconsistent with the terms of this Agreement, the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Claimholders Second Priority Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Second Priority Obligations in accordance with the terms of the Subordinated Lien Documents Second Priority Indenture Documents, and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated Lien Claimholder Second Priority Secured Party 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 Subordinated Lien Second Priority Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Priority Obligations) as the other Liens securing the Subordinated Lien Second Priority Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Priority Collateral Trustee Agent or any Subordinated Lien Claimholders Second Priority Secured Parties of the required payments of interest, principal principal, premium, fees and other amounts owed in respect of the Subordinated Lien Second Priority Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Priority Collateral Trustee Agent or any Subordinated Lien Claimholders Second Priority Secured Parties of rights or remedies as a secured creditor (including set-set off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs shall impair or otherwise adversely affects affect any rights or remedies the First Lien Priority Collateral Agent or the First Lien Priority Claimholders may have with respect to the First Lien Priority Collateral.
Appears in 1 contract
Sources: Indenture (GOOD TECHNOLOGY Corp)
Exercise of Remedies. (a) 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 Subordinated Collateral Second Lien Trustee and the Subordinated Second Lien Claimholders:
(1i) will not exercise or seek to exercise any rights or remedies with respect to any Collateral or take possession of, sell or otherwise realize (including judicially or non judicially) upon any of the Collateral (including, without limitation, through the notification of account debtors or the exercise of any right 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 Subordinated Collateral Second Lien Trustee or any Subordinated Second Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (any such action taken after the occurrence of and during the continuance of an Event of Default under the First Lien Loan Documents or the Second Lien Documents, as applicable, a “Lien Enforcement Action”); provided, however, that the Second Lien Trustee may take any or all Lien Enforcement Actions after a period of at least 180 days has elapsed since the later of: (i) the date on which the Second Lien Trustee declared the existence of any Event of Default (as defined in the Second Lien Indenture) under any Second Lien Documents and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Agent received notice from the Second Lien Trustee of such declaration of an Event of Default, (the “Standstill Period”); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Trustee or any Second Lien Claimholder take any Lien Enforcement Action if, notwithstanding the expiration of the Standstill Period, the First Lien Agent or First Lien Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Trustee);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3iii) subject to their rights under clause (a)(1a)(i) above, will not object to the forbearance by the 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 CollateralCollateral in the case of each of clause (i), in each case (ii) and (iii) above, so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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, subject to Section 3.1(a), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the releaserelease of, dispositiondisposition of, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Second Lien Trustee or any Subordinated Second Lien Claimholder; provided that, the . The First Lien securing the Subordinated Lien Obligations Agent shall remain on the proceeds of such Collateral released or disposed of subject provide at least ten (10) Business Days notice to the relative priorities described in Section 2Second Lien Trustee of its intent to exercise and enforce its rights or remedies with respect to the Collateral. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 the First Lien Agent or the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Second Lien Trustee and any Subordinated Second Lien Claimholder may:
(1i) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that Obligations if an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) 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 Claimholder to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3iii) 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) 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 Subordinated Second Lien Obligations and the Collateral; and
(v) exercise any Lien Enforcement Action with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i). The Subordinated Collateral Second Lien Trustee, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral Lien Enforcement Action in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurredoccurred or as otherwise expressly permitted in Section 3.1(a)(i). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except or as otherwise expressly provided permitted in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Second Lien Trustee and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1i) the Subordinated Collateral Second Lien Trustee, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Collateral Second Lien Trustee and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Collateral Second Lien Trustee, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3iii) the Subordinated Collateral Second Lien Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be effective to restrict or deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Second Lien Trustee and the Subordinated Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted or purported to grant Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Second Lien Trustee or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Second Lien Trustee or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupmentoff) 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 (Protection One Alarm Monitoring Inc)
Exercise of Remedies. (a) 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 Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated 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 Administrative Agent may exercise any or all such rights or remedies and/or the Second Lien Claimholders may direct the Second Lien Administrative Agent to exercise remedies with respect to the Collateral, in each case, after the passage of a period of at least 180 days has elapsed since the later of: (i) the date on which the Second Lien Administrative Agent declared the existence of any Event of Default under any Second Lien Loan Documents and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Administrative Agent received notice from the Second Lien Administrative Agent of such declarations of an Event of Default, (the “Standstill Period”); provided further, however, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Administrative 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 Administrative Agent or First Lien Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Administrative Agent);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Administrative Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Administrative Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Administrative 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 Collateral, in each case case, so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Administrative Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated Second Lien Claimholder; provided that, that the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds of such First Lien Collateral released or disposed of not applied to reduce First Lien Obligations subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the First Lien Collateral, the First Lien Collateral Administrative Agent and the First Lien Claimholders may enforce the provisions of the 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 such Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee Second Lien Administrative Agent and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany;
(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 Administrative Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Second Lien 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 Subordinated Second Lien Claimholders, including any claims secured by the Second Lien Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) 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 Subordinated Second Lien Obligations and the Second Lien Collateral; and
(5) exercise any of its rights or remedies with respect to the Second Lien Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1). The Subordinated Collateral TrusteeSecond Lien Administrative Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent the Second Lien Administrative Agent and Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders with respect to the Second Lien Collateral is to hold a Lien on the such Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1) the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Second Lien Collateral, whether by foreclosure or otherwise;; and
(2) the Subordinated Collateral TrusteeSecond Lien Administrative Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Administrative Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee Second Lien Administrative Agent and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien creditor in respect of First Lien Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts interest owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not in violation of the First Lien Credit Agreement and is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee Second Lien Administrative Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 Administrative Agent or the First Lien Claimholders may have with respect to the First Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) Until all principal, interest and other obligations under the Discharge First Tranche Notes have been paid in full in cash:
(1) except for non-cash payments permitted by Section 3(c) of First Lien Obligations has occurredthis Amendment, whether the Investors holding Subsequent Tranche Notes will not take from or not any Insolvency or Liquidation Proceeding has been commenced by or against for the account of the Company or any other Grantor, by set-off or in any other manner, the Subordinated Collateral Trustee whole or any part of any moneys which may now or hereafter be owing by the Company or any other Grantor with respect to the obligations under the Subsequent Tranche Notes; (2) will not ▇▇▇ for payment of, or initiate or participate with others in any suit, action or proceeding against the Company or any other Grantor to (x) enforce payment of or collect the whole or any part of the obligations under the Subsequent Tranche Notes (which shall include, for the avoidance of doubt, any demand or collection of payment at maturity), or (y) commence judicial enforcement of any of the rights and remedies under the Subordinated Lien Claimholders:Transaction Documents or applicable law with respect to the obligations under the Subsequent Tranche Notes; and (3) will not exercise any put option or cause the Company or any other Grantor to honor any redemption or mandatory prepayment obligation under any Transaction Document with respect to the obligations under the Subsequent Tranche Notes;
(1ii) will not exercise or seek to exercise any rights or remedies with respect to any Lien on any Collateral (including as defined in the exercise Security Agreement) to secure the performance of any right of setoff or any right the obligations under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) Subsequent Tranche Notes or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2iii) will not contest, protest protest, object to, or object take any action to hinder or delay (including taking action to commence an involuntary Insolvency or Liquidation Proceeding) any foreclosure proceeding or action brought by the Investors holding First Lien Collateral Agent or any First Lien Claimholder Tranche Notes or any other exercise by the Investors holding First Lien Collateral Agent or any First Lien Claimholder Tranche Notes of any rights and remedies relating to the Collateral securing the obligations under the First Lien Documents or otherwiseTranche Notes; and
(3iv) subject to their rights under clause (a)(1) above, will not object to the forbearance by the Investors holding First Lien Collateral Agent or the First Lien Claimholders Tranche Notes from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; provided, that, in each the case so long as of clause (iii) above, the Liens security interests granted to secure the Subordinated Lien Obligations obligations under the Subsequent Tranche Notes shall attach to any remaining proceeds resulting from actions taken by the holders of the Subordinated Lien Claimholders attach First Tranche Notes in accordance with this Amendment after application of such proceeds to pay in full in cash any and all principal, interest and other obligations under the proceeds thereof subject to the relative priorities described in Section 2First Tranche Notes.
(b) Until the Discharge payment in full in cash of all principal, interest and other obligations under the First Lien Obligations Tranche Notes has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Investors holding First Lien Collateral Agent and the First Lien Claimholders Tranche Notes shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment set off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositionDisposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholderholder of Subsequent Tranche Notes; provided thatprovided, that the Lien securing the Subordinated Lien Obligations obligations under the Subsequent Tranche Notes shall remain on the remaining proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 23 after application of such proceeds to the extent necessary to effect the payment in full in cash of all principal, interest and other obligations under the First Tranche Notes. In exercising rights and remedies with respect to the Collateral, the Holders of First Lien Collateral Agent and the First Lien Claimholders Tranche Notes may enforce the provisions of the First Lien Transaction 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 any agent appointed by them to sell or otherwise dispose of 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 creditor under the UCC (as defined in the Security Agreement) and of a secured creditor under Bankruptcy the Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality In furtherance of the foregoing, unless and for avoidance of doubt, until the Discharge payment in full in cash of all principal, interest and other obligations under the First Lien Obligations Tranche Notes has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained term “Required Secured Parties” set forth in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) Security Agreement shall be deemed to restrict in any way mean the rights and remedies holders of more than 50% of the aggregate outstanding principal balance of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsTranche Notes.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Note and Warrant Purchase Agreement
Exercise of Remedies. (ai) Until So long as the Discharge of First First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Bankruptcy Proceeding has been commenced by or against the Company or any other Grantor, neither the Subordinated Collateral Trustee and the Subordinated Second-Lien ClaimholdersAgent nor any Second-Lien Secured Party shall:
(1A) will not exercise or seek to exercise any rights or remedies (including set-off) with respect to any First-Lien Collateral (including of the exercise First Lien Secured Parties in respect of any right of setoff or any right under any lockbox agreementapplicable Second-Lien Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2B) will not contest, protest or object to any foreclosure proceeding or action brought with respect to the First-Lien Collateral by the First First-Lien Collateral Agent or any First First-Lien Claimholder Secured Party in respect of the First-Lien Obligations, the exercise of any right by the First-Lien Agent or any First-Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First-Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee's letter or similar agreement or arrangement to which the Second-Lien Agent or any Second-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 First Lien Claimholder such party of any rights and remedies as a secured party relating to the First-Lien Collateral under the First First-Lien Documents or otherwise, in respect of First-Lien Obligations; andor
(3C) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First First-Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the CollateralFirst-Lien Collateral in respect of First-Lien Obligations; provided, however, that if an Event of Default (as defined in the Second-Lien Documents (as in effect on the date hereof)) has occurred and for so long as such Event of Default is continuing, subject at all times to the provisions of Sections 2(a) and 4, after the expiration of a 180-day period (the "Standstill Period") which shall commence on the date of receipt by the First-Lien Agent of the written declaration of the Second-Lien Agent of such Event of Default and written demand by the Second-Lien Agent to the Company for the accelerated payment of all Second-Lien Obligations (unless any Grantor is subject to a Bankruptcy Proceeding by reason of which such declaration and the making of such demand is stayed, in each case which case, commencing on the date of the commencement of such Bankruptcy Proceeding), the Second-Lien Agent may take action to enforce its second-priority Liens on the First-Lien Collateral of the First Lien Secured Parties upon 30 days' prior written notice to the First-Lien Agent (which notice may be given prior to the completion of such 180-day period, but not prior to the 150th day of such period), but only so long as the First-Lien Agent has not commenced or is not diligently pursuing in good faith the exercise of its enforcement rights or remedies against all or any material portion of its First-Lien Collateral (including, without limitation, commencement of any reasonable action to foreclose its Liens granted on such First-Lien Collateral, any reasonable action to secure take possession of such First-Lien Collateral or commencement of any reasonable legal proceedings or actions against or with respect to such First-Lien Collateral) and the Subordinated First-Lien Obligations Agent is not enjoined or stayed from taking any such lien enforcement action against a material portion of the Subordinated First-Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2Collateral.
(bii) Until Except as expressly provided in the proviso in Section 3(a)(i), so long as the Discharge of First First-Lien Obligations has occurred, not occurred and whether or not any Insolvency or Liquidation Bankruptcy Proceeding has been commenced by or against the Company or any other Grantor, the First First-Lien Collateral Agent and the First First-Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, disposition or restrictions with respect to the its First-Lien Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second-Lien Agent or any Subordinated Second-Lien ClaimholderSecured Party; provided thathowever, that the Second-Lien Agent may take any action (not adverse to the prior Liens on the First-Lien Collateral securing the First-Lien Obligations, or the rights of the First-Lien Agent or the 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 First-Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2Collateral. In exercising rights and remedies with respect to the First-Lien Collateral, the First First-Lien Collateral Agent and the First First-Lien Claimholders Secured Parties may enforce the provisions of the First 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 First-Lien Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws Law of any applicable jurisdiction.
(ciii) Notwithstanding Except as expressly provided in the foregoingproviso in Section 3(a)(i), so long as the Discharge of First-Lien Obligations has not occurred, the Subordinated Collateral Trustee and any Subordinated Second-Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated applicable Second-Lien ClaimholderSecured Party, agrees that it will not not, in the context of its role as secured creditor, take or receive any First-Lien Collateral or any proceeds of First-Lien Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoft) with respect to any First-Lien Collateral in its capacity as a creditor, unless and until respect of the Discharge of First applicable Second-Lien Obligations has occurredObligations. Without limiting the generality of the foregoing, unless and until the Discharge of First First-Lien Obligations has occurred, except as expressly provided in the provisos in Sections 3.1(a), 6.3(b3(a)(i) and this Section 3.1(c(ii), the sole right of the Subordinated Collateral Trustee Second-Lien Agent and the Subordinated Second-Lien Claimholders Secured Parties with respect to the First-Lien Collateral is shall be to hold a Lien on the First-Lien Collateral in respect of the applicable Second-Lien Obligations pursuant to the Subordinated Second-Lien Collateral Documents 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 First First-Lien Obligations has occurred. For the avoidance of doubt, this Section 3(a)(iii) shall not affect the right of any Second-Lien Secured Party to receive proceeds of First-Lien Collateral in accordance with Section 5(d).
(div) Subject to Sections 3.1(c) and Except as expressly provided in the proviso in Section 6.3(b):
3(a)(i), (1A) the Subordinated Collateral TrusteeSecond-Lien Agent, for itself and on behalf of the Subordinated each applicable Second-Lien ClaimholdersSecured Party, agrees that the Subordinated Collateral Trustee and the Subordinated no Second-Lien Claimholders Agent or any Second-Lien Secured Party will not take any action that would hinder any exercise of remedies undertaken by the First-Lien Agent or the First-Lien Secured Parties with respect to the First-Lien Collateral under the First First-Lien Documents or is otherwise prohibited hereunderDocuments, including any sale, lease, exchange, transfer or other disposition of the First-Lien Collateral, whether by foreclosure or otherwise;
, and (2B) the Subordinated Collateral TrusteeSecond-Lien Agent, for itself and on behalf of the Subordinated each applicable Second-Lien ClaimholdersSecured Party, hereby waives any and all rights it or the Subordinated any Second-Lien Claimholders Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First First-Lien Collateral Agent or the First First-Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the their Liens securing the First Lien Obligations granted in on any of the First First-Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First First-Lien Collateral Agent or First First-Lien Claimholders Secured Parties is adverse to the interest interests of the Subordinated Second-Lien Claimholders; andSecured Parties.
(3v) the Subordinated Collateral Trustee The Second-Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second-Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First First-Lien Collateral Agent or the First First-Lien Claimholders Secured Parties with respect to the First-Lien Collateral as set forth in this Agreement and the First First-Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until the Discharge of First Parity 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 Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated Junior Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral until after the passage of the Junior Lien Representative Standstill Period; provided that notwithstanding anything herein to the contrary, in no event shall any Junior Lien Representative, any Junior Lien Collateral (including the exercise of any right of setoff Agent or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Junior Lien Claimholder is a party) or institute take any action or proceeding Enforcement Action with respect to such the Collateral if, notwithstanding the expiration of the Junior Lien Representative Standstill Period, (i) any Parity Lien Representative, any Parity Lien Collateral Agent or the applicable Parity Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (including prompt notice of such exercise to be given to the Designated Junior Lien Representative); (ii) the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding (provided that in any such Insolvency or Liquidation Proceeding any Junior Lien Representative, Junior Lien Collateral Agent or Junior Lien Claimholder may take any action permitted by Section 6 hereof); or (iii) as to the ABL Priority Collateral (as defined in the ABL Intercreditor Agreement), any Parity Lien Representative, any Parity Lien Collateral Agent or the applicable Parity Lien Claimholders are stayed by the ABL Intercreditor Agreement from pursuing exercise of foreclosure)rights and remedies with respect to the Collateral;
(2) will not file any involuntary bankruptcy proceedings against the Company or any other Grantor, contest, protest or object to any foreclosure proceeding or action brought by the First any Parity Lien Representative, any Parity Lien Collateral Agent or any First Parity Lien Claimholder or any other exercise by the First any Parity Lien Representative, any Parity Lien Collateral Agent or any First Parity Lien Claimholder of any rights and remedies relating to the Collateral under the First Parity Lien Debt Documents or otherwise; andotherwise (including any Enforcement Action initiated by or supported by any Parity Lien Representative, any Parity Lien Collateral Agent or any Parity Lien Claimholder);
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the First any Parity Lien Representative, any Parity Lien Collateral Agent or the First any Parity Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; and
(4) no Junior Lien Representative, Junior Lien Collateral Agent or Junior Lien Claimholder shall file any notice or other document under the federal Assignment of Claims Act 31 USC 3737, 41 USC 15 that requires payment to any Junior Lien Representative, Junior Lien Collateral Agent or Junior Lien Claimholder, in each case so long as the Liens granted any proceeds received by any Parity Lien Representative or Parity Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of Parity Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(b) Until the Discharge of First Parity Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(1), the First Parity Lien Representatives, the Parity Lien Collateral Agent Agents and the First Parity Lien Claimholders shall have the sole and exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-offset‑off, recoupment and the right to credit bid their debt) and, except that Junior Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent or any Subordinated other Junior Lien Claimholder; provided that, the that any proceeds received by any Parity Lien securing the Subordinated Representative or Parity Lien Collateral Agent in excess of those necessary to achieve a Discharge of Parity Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Parity Lien Representatives, the Parity Lien Collateral Agent Agents and the First Parity Lien Claimholders may enforce the provisions of the First Parity 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 in compliance with any applicable law and without consultation with any Junior Lien Representative, any Junior Lien Collateral Agent or any other Junior Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Junior Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Junior Lien Representative, any Junior Lien Collateral Trustee Agent and any Subordinated other Junior Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Junior Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Parity Lien Obligations, or the rights of any First Parity Lien Representative, any Parity Lien Collateral Agent or the First Parity Lien Claimholders to exercise 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 Subordinated Junior Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance inconsistent with the terms of this Agreement, with respect to the Subordinated Junior Lien Obligations and the Collateral;
(5) exercise any of its rights or remedies with respect to the Collateral to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any Parity Lien Representative, any Parity Lien Collateral Agent or any other Parity Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Junior Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to, and are applied to, cause the Discharge of Parity Lien Obligations. The Subordinated Each Junior Lien Representative and each Junior Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Junior Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless creditor in violation of this Agreement. Unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Parity Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Junior Lien Representatives, the Junior Lien Collateral Trustee Agents and the Subordinated other Junior Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Junior 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 First Parity Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Indenture (Urban One, Inc.)
Exercise of Remedies. (a) 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 GrantorBorrower, the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Collateral (including Lien held by it under any Second Lien Loan Document or otherwise; provided, however, that the exercise Second Lien Agent may take Enforcement Action at any time after a period of 30 days has elapsed since the date on which the First Lien Agent shall have received written notice from the Second Lien Agent of the existence of any right Event of setoff Default under the Second Lien Credit Agreement and the Second Lien Obligations are currently due and payable in full as a result of acceleration or otherwise (the “Standstill Period”); provided, in no event shall the Second Lien Agent or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute take any action or proceeding Enforcement Action with respect to any Lien held by it under any Second Lien Loan Document or otherwise if, notwithstanding the expiration of the Standstill Period, (i) the First Lien Agent or First Lien Claimholders shall have commenced and are diligently pursuing an Enforcement Action with respect to all or any material portion of the Collateral or shall be diligently attempting to vacate any stay or prohibition against such exercise (prompt written notice of the initial commencement of such exercise to be given to the Second Lien Agent provided, that the First Lien Agent shall incur no liability for, and the rights of the First Lien Agent hereunder or remedies in respect of the Collateral shall be unaffected by, the failure of the First Lien Agent to give any such notice); (including any action ii) the “Amortization Period” (as defined in the First Lien Credit Agreement) shall then exist and collections of foreclosure)the Collateral are being applied and distributed pursuant to Sections 2.04(c) and 2.04A(b) of the First Lien Credit Agreement; or (iii) the acceleration of the Second Lien Obligations (if any) is rescinded in accordance with the terms of the Second Lien Credit Agreement or by court order;
(2) subject to their rights under Section 3.1(b), will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseotherwise so long as the Liens granted to secure the Second Lien Obligations of the Second Lien Claimholders attach to the Proceeds thereof subject to the relative priorities described in Section 2.1; and
(3) subject to their rights under clause (a)(1) above, will not contest, protest or object to (and waive any and all claims with respect to) the forbearance by the 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 Collateral, in each case Enforcement Action so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders attach to the proceeds Proceeds thereof subject to the relative priorities described in Section 22.1.
(b) Whether or not any Insolvency Proceeding has been commenced by or against the Borrower, the First Lien Agent and the First Lien Claimholders agree that they will not effectuate any Collateral Sale during the first 45 days after the occurrence of the “Amortization Period” (as defined in the First Lien Credit Agreement) unless either (1) such Collateral Sale will result in the payment in full in cash of the First Lien Obligations and the Second Lien Obligations or (2) the Second Lien Agent shall have consented thereto. If the First Lien Agent desires to arrange a Collateral Sale at any time after such 45-day period, First Lien Agent will first offer the Second Lien Claimholders the option to purchase the First Lien Obligations in accordance with the provisions of Section 3.4 by giving the Second Lien Agent notice thereof (the “Purchase Notice”), which the Second Lien Agent will promptly forward to each Second Lien Claimholder.
(c) 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 GrantorBorrower, but subject to the first proviso of Section 3.1(a)(1) and to Section 3.1(b), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rightsrights and remedies with respect to the Collateral, exercise remedies commence, and if applicable, maintain an Enforcement Action (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Agent or any Subordinated Second Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral and Enforcement Actions with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may may, subject to Section 3.1(b), enforce the provisions of the 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 include, subject to Section 3.1(b), the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and right to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cd) Notwithstanding the foregoing, the Subordinated Collateral Trustee Second Lien Agent and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Obligations in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorBorrower;
(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 the First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance a manner not inconsistent with the terms any other provisions of this Agreement; and;
(4) vote on any plan of reorganization (including, without limitation, vote to accept or reject any plan of partial or complete liquidation, reorganization, arrangement, composition or extension), file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance not inconsistent with the terms any other provisions of this Agreement, with respect to the Subordinated Second Lien Obligations and the Collateral;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(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 the First Lien 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 Enforcement Action by the First Lien Agent (it being understood that any Liens attaching to the proceeds thereof shall be subject to the relative priorities described in Section 2.1). The Subordinated Collateral TrusteeSecond Lien Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds Proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to Enforcement Action against any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as in connection with any Enforcement Action expressly provided permitted by Section 3.1(a)(1) to the extent the Second Lien Agent and Second Lien Claimholders are permitted to retain the Proceeds thereof in accordance with Section 4.2 of this Agreement.
(e) Subject to Sections 3.1(a), 6.3(b(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b6.4(b):
(1) except as otherwise permitted hereunder, the Subordinated Collateral TrusteeSecond Lien Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwiseLoan Documents;
(2) except as otherwise permitted hereunder, the Subordinated Collateral TrusteeSecond Lien Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee Second Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Second Lien Collateral Documents or any other Subordinated Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(ef) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee Second Lien Agent and the Subordinated 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 Subordinated Lien Obligations Borrower in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated Second Lien Obligations, such judgment Lien lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(fg) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Second Lien Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise any Enforcement Action by the Subordinated Collateral Trustee Second Lien Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of or 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
Exercise of Remedies. (a) 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, Credit Party: (i) the Subordinated Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders:Secured Parties
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (including x) the date on which the Second Lien Collateral Agent declared the existence of any action Event of foreclosureDefault (as defined in the Indenture) and demanded the repayment of all the principal amount of any Second Lien Obligations and (y) the date on which the First Lien Collateral Agent received notice from the Second Lien Collateral Agent of such declaration of an Event of Default (the “Standstill Period”);
; provided that the Second Lien Collateral Agent shall have given the First Lien Collateral Agent at least 15 days written notice prior to such Enforcement Action, which notice may be given during the pendency of the applicable Standstill Period; provided further that in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party 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 other First Lien Secured Party shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies (or shall have sought or requested relief or modification of the automatic stay or any other stay in an Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), in each case, with respect to all or any material portion of the Collateral; (2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any other First Lien Claimholder Secured Party or any other exercise by the First Lien Collateral Agent or any other First Lien Claimholder Secured Party of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the other First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted First Lien Collateral Agent in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of are distributed in accordance with the Subordinated Lien Claimholders attach to the proceeds thereof UCC and other applicable law, subject to the relative priorities described in Section 2.
2 hereof; (b4) Until will not take or cause to be taken any action, the Discharge purpose or effect of which is to make any Lien in respect of any Second Lien Obligation pari passu with or senior to, or give any Second Lien Secured Party any preference or priority relative to, the Liens with respect to the First Lien Obligations has occurredor the First Lien Secured Parties; and (5) will not institute any suit or other proceeding or assert in any suit, whether or not any Insolvency or Liquidation Proceeding has been commenced by or other proceeding any claim against the Company First Lien Collateral Agent or any other GrantorFirst Lien Secured Party seeking damages from or other relief by way of specific performance, injunction or otherwise, with respect to, and neither the First Lien Collateral Agent nor any other First Lien Secured Party shall be liable for, any action taken or omitted to be taken by the First Lien Collateral Agent or any other First Lien Secured Party with respect to any Collateral or pursuant to the First Lien Loan Documents and (ii) the First Lien Collateral Agent and the other First Lien Claimholders Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-set- off, recoupment and the right to “credit bid bid” their debt) and, subject to Section 5.1except that the Second Lien Collateral Agent shall have limited “credit bid” rights as provided below), and rights to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated other Second Lien ClaimholderSecured Party; provided that, that any proceeds received by the First Lien securing the Subordinated Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on are distributed in accordance with the proceeds of such Collateral released or disposed of UCC and other applicable law, subject to the relative priorities described in Section 22.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the other First Lien Claimholders Secured Parties may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with or consent of the Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 The Second Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, agrees that that, it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except as otherwise permitted under Section 3.1(a)(i) hereof to the extent the Second Lien Collateral Agent and the other Second Lien Secured Parties are permitted to retain the proceeds thereof in accordance with this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections permitted by Section 3.1(a), 6.3(b) and this Section 3.1(c)hereof, the sole right of the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Documents and applicable law.
(di) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated The Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties will not take any action that would hinder hinder, delay or interfere with any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated Second Lien Claimholders Secured Parties may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with the provisions of this Agreement, regardless of whether any action or failure to act by or on behalf of the First .
(d) The Second Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth Section 3.1 hereof shall not be construed to in Sections 3.1(aany way limit or impair the right of (i) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Secured Party or Second Lien Obligations are subject Secured Party to this Agreement.
(f) Except as specifically set forth bid in Sections 3.1(a) and (d), nothing cash for or purchase in this Agreement shall prohibit the receipt by the Subordinated cash Collateral Trustee at any private or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as judicial foreclosure upon such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held initiated by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies , it being acknowledged and agreed that the Second Lien Secured Parties may not (but the First Lien Collateral Agent or Secured Parties may) prior to the Discharge of First Lien Claimholders may have with respect Obligations credit bid any of their claims and (ii) any Second Lien Secured Party’s right to receive any remaining proceeds of Collateral after the Discharge of First Lien CollateralObligations.
Appears in 1 contract
Exercise of Remedies. (ai) Until So long as the Discharge of First First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Bankruptcy Proceeding has been commenced by or against the Company or any other Grantor, neither the Subordinated Collateral Trustee and the Subordinated Second-Lien ClaimholdersAgent nor any Second-Lien Secured Party shall:
(1A) will not exercise or seek to exercise any rights or remedies (including set-off) with respect to any First-Lien Collateral (including the exercise in respect of any right of setoff or any right under any lockbox agreementapplicable Second-Lien Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2B) will not contest, protest or object to any foreclosure proceeding or action brought with respect to the First-Lien Collateral by the First First-Lien Collateral Agent or any First First-Lien Claimholder Secured Party in respect of the First-Lien Obligations, the exercise of any right by the First-Lien Agent or any First-Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First-Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second-Lien Agent or any Second-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 First Lien Claimholder such party of any rights and remedies as a secured party relating to the First-Lien Collateral under the First First-Lien Documents or otherwiseotherwise in respect of First-Lien Obligations; andor
(3C) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First First-Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the CollateralFirst-Lien Collateral in respect of First-Lien Obligations; provided, however, that if an Event of Default (as defined in the Second-Lien Documents (as in effect on the date hereof)) has occurred and for so long as such Event of Default is continuing, subject at all times to the provisions of Sections 2(a) and 4, after the expiration of a 180-day period (the “Standstill Period”) which shall commence on the date of receipt by the First-Lien Agent of the written declaration of the Second-Lien Agent of such Event of Default and written demand by the Second-Lien Agent to the Company for the accelerated payment of all Second-Lien Obligations (unless any Grantor is subject to an Bankruptcy Proceeding by reason of which such declaration and the making of such demand is stayed, in each case which case, commencing on the date of the commencement of such Bankruptcy Proceeding), the Second-Lien Agent may take action to enforce its second-priority Liens on the First-Lien Collateral upon 30 days’ prior written notice to the First-Lien Agent (which notice may be given prior to the completion of such 180-day period, but not prior to the 150th day of such period), but only so long as the Liens granted to secure First-Lien Agent has not commenced or is not diligently pursuing in good faith the Subordinated Lien Obligations exercise of its enforcement rights or remedies against all or any material portion of the Subordinated First-Lien Claimholders attach Collateral (including, without limitation, commencement of any reasonable action to foreclose its Liens on such First-Lien Collateral, any reasonable action to take possession of such First-Lien Collateral or commencement of any reasonable legal proceedings or actions against or with respect to such First-Lien Collateral) and the proceeds thereof subject to First-Lien Agent is not enjoined or stayed from taking any such lien enforcement action against a material portion of the relative priorities described in Section 2First-Lien Collateral.
(bii) Until Except as expressly provided in the proviso in Section 3(a)(i), so long as the Discharge of First First-Lien Obligations has occurred, not occurred and whether or not any Insolvency or Liquidation Bankruptcy Proceeding has been commenced by or against the Company or any other Grantor, the First First-Lien Collateral Agent and the First First-Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, disposition or restrictions with respect to the First-Lien Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second-Lien Agent or any Subordinated Second-Lien ClaimholderSecured Party; provided thatprovided, however, that the Second-Lien Agent may take any action (not adverse to the prior Liens on the First-Lien Collateral securing the First-Lien Obligations, or the rights of the First-Lien Agent or the 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 First-Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2Collateral. In exercising rights and remedies with respect to the First-Lien Collateral, the First First-Lien Collateral Agent and the First First-Lien Claimholders Secured Parties may enforce the provisions of the First 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 First-Lien Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Laws Law of any applicable jurisdiction.
(ciii) Notwithstanding Except as expressly provided in the foregoingproviso in Section 3(a)(i), so long as the Discharge of First-Lien Obligations has not occurred, the Subordinated Collateral Trustee and any Subordinated Second-Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated applicable Second-Lien ClaimholderSecured Party, agrees that it will not in the context of its role as secured creditor take or receive any First-Lien Collateral or any proceeds of First-Lien Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any First-Lien Collateral in its capacity as a creditor, unless and until respect of the Discharge of First applicable Second-Lien Obligations has occurredObligations. Without limiting the generality of the foregoing, unless and until the Discharge of First First-Lien Obligations has occurred, except as expressly provided in the provisos in Sections 3.1(a), 6.3(b3(a)(i) and this Section 3.1(c(ii), the sole right of the Subordinated Collateral Trustee Second-Lien Agent and the Subordinated Second-Lien Claimholders Secured Parties with respect to the First-Lien Collateral is shall be to hold a Lien on the First-Lien Collateral in respect of the applicable Second-Lien Obligations pursuant to the Subordinated Second-Lien Collateral Documents 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 First First-Lien Obligations has occurred. For the avoidance of doubt, this Section 3(a)(iii) shall not affect the right of any Second-Lien Secured Party to receive proceeds of First-Lien Collateral in accordance with Section 5(d).
(div) Subject to Sections 3.1(c) and Except as expressly provided in the proviso in Section 6.3(b):
3(a)(i), (1A) the Subordinated Collateral TrusteeSecond-Lien Agent, for itself and on behalf of the Subordinated each applicable Second-Lien ClaimholdersSecured Party, agrees that the Subordinated Collateral Trustee and the Subordinated no Second-Lien Claimholders Agent or any Second-Lien Secured Party will not take any action that would hinder any exercise of remedies undertaken by the First-Lien Agent or the First-Lien Secured Parties with respect to the First-Lien Collateral under the First First-Lien Documents or is otherwise prohibited hereunderDocuments, including any sale, lease, exchange, transfer or other disposition of the First-Lien Collateral, whether by foreclosure or otherwise;
, and (2B) the Subordinated Collateral TrusteeSecond-Lien Agent, for itself and on behalf of the Subordinated each applicable Second-Lien ClaimholdersSecured Party, hereby waives any and all rights it or the Subordinated any Second-Lien Claimholders Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First First-Lien Collateral Agent or the First First-Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the their Liens securing the First Lien Obligations granted in on any of the First First-Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First First-Lien Collateral Agent or First First-Lien Claimholders Secured Parties is adverse to the interest interests of the Subordinated Second-Lien Claimholders; andSecured Parties.
(3v) the Subordinated Collateral Trustee The Second-Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second-Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First First-Lien Collateral Agent or the First First-Lien Claimholders Secured Parties with respect to the First-Lien Collateral as set forth in this Agreement and the First First-Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1i) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s 's letter or similar agreement or arrangement to which the Subordinated Second Lien Collateral Trustee Agent or any Subordinated 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 or remedies after the passage of a period of at least 180 days has elapsed since the later of: (i) the date on which the Second Lien Collateral Agent declares the existence of any Event of Default under any Second Lien Loan Documents and demands the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Collateral Agent receives notice from the Second Lien Collateral Agent of such declarations of an Event of Default and demand (the "STANDSTILL PERIOD"); provided, further, however, that 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 First Lien Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3iii) subject to their rights under clause (a)(1) aboveabove and except as may be permitted in Section 3.1(c), will not object to the forbearance by the 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 Collateral; provided, that, in each the case so long as of (1), (2) and (3) above, the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders shall attach to any proceeds resulting from actions taken by the First Lien Collateral Agent or any First Lien Claimholder in accordance with this Agreement after application of such proceeds thereof subject to the relative priorities described in Section 2extent necessary to meet the requirements of a Discharge of First Obligations.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided thatprovided, that the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the Second Lien Collateral Agent on behalf of itself and the Second Lien Claimholders agrees that the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. 12 -
(a) Until So long as the Discharge of First Lien Senior 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, neither the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:Second Priority Representative nor any other Second Priority Debt Party will
(1i) will not exercise take any Enforcement Action; provided, the Second Priority Representative may take any Enforcement Action after a period (such period, as the same may be extended pursuant to the following proviso, the “Standstill Period”) of 90 consecutive days has elapsed from the date of delivery of written notice from the Second Priority Representative to the Senior Representative stating that (A) an Event of Default has occurred and is continuing under the Second Priority Debt Documents, (B) the Second Priority Debt Obligations are currently due and payable in full (whether as a result of acceleration thereof or seek otherwise) in accordance with the terms of the Second Priority Debt Documents, and (C) the Second Priority Representative intends to exercise any its rights to take such Enforcement Action (provided that, if on the expiration of such 90 consecutive day period, the Senior Representative or remedies Senior Secured Parties are then diligently pursuing an Enforcement Action with respect to any Collateral (including all or substantially all of the exercise of any right of setoff or any right under any lockbox agreementCollateral, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement the Standstill Period shall be extended to the date on which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding no Senior Secured Party shall be diligently pursuing an Enforcement Action with respect to all or substantially all of the Collateral; provided, further, that, to the extent permitted to do so under applicable law, the Senior Representative shall give prompt notice of such rights or remedies (including any action Enforcement Action to the Second Priority Debt Representative and shall keep the Second Priority Debt Representative reasonably apprised of foreclosuresuch Enforcement Action);
(2ii) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought with respect to the Collateral by the First Lien Collateral Agent or any First Lien Claimholder Senior Representative or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating Senior Secured Party except to the Collateral under the First Lien Documents or otherwiseextent any such Enforcement Action is not taken in accordance with applicable law; andor
(3iii) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action Enforcement Action during the Standstill Period or any other exercise of any rights or remedies relating to the Collateral, Collateral in each case so long as the Liens granted to secure the Subordinated Lien Obligations respect of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2Senior Obligations.
(b) Until the earlier of the Discharge of First Lien Senior Priority Obligations has occurredoccurred and the expiration of the Standstill Period, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.01(a)(i) and Section 3.01(c), the First Lien Collateral Agent Senior Representative and the First Lien Claimholders other Senior Secured Parties shall have the exclusive right to enforce rightscommence and maintain an Enforcement Action; provided, exercise remedies (including set-off, recoupment that any proceeds received by the Senior Representative in excess of those necessary to achieve a Discharge of Senior Priority Obligations are distributed to Second Priority Representative on behalf of the Second Priority Debt Parties or otherwise in accordance with the UCC and the right to credit bid their debt) andother applicable law, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholderrelative priorities described herein; provided thatfurther, that the Lien securing the Subordinated Lien Second Priority Debt Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 22.01. In exercising rights and remedies with respect to the Collateralcommencing or maintaining any Enforcement Action, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders other Senior Secured Parties may enforce the provisions of the First Lien Senior 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 in compliance with any applicable law and without consultation with the Second Priority Representative or any other Second Priority Debt Party. Such exercise and enforcement shall include the rights of an agent appointed by them the Senior Representative or any other Senior Secured Party to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding anything to the foregoingcontrary contained herein, the Subordinated Collateral Trustee and Second Priority Debt Parties may at any Subordinated Lien Claimholder may:time exercise Permitted Remedies.
(1d) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2Without limiting Section 3.01(c) 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Senior Priority Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1i) the Subordinated Collateral TrusteeSecond Priority Representative, for itself and on behalf of the Subordinated Lien Claimholderseach other Second Priority Debt Party, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders neither such Second Priority Representative nor any such other Second Priority Debt Party will not take any action that would hinder any exercise of remedies undertaken by the Senior Representative or any Senior Secured Party with respect to the Collateral under the First Lien Documents or is otherwise prohibited hereunderSenior Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral TrusteeSecond Priority Representative, for itself and on behalf of the Subordinated Lien Claimholderseach other Second Priority Debt Party, hereby waives any and all rights it or the Subordinated Lien Claimholders any such Second Priority Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Parties seek to enforce or collect the First Lien Senior Obligations or the Liens securing the First Lien Obligations granted in on any of the First Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent Senior Representative or First Lien Claimholders any other Senior Secured Party is adverse to the interest interests of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsSecond Priority Debt Parties.
(e) Except If, upon the expiration of the Standstill Period, (as specifically set forth in Sections 3.1(ait may be extended pursuant to Section 3.01(a)(i) and (dabove), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that and for so long as the Second Priority Representative or any Subordinated Lien Claimholder becomes a judgment Lien creditor in respect other Second Priority Debt Party has commenced any Enforcement Action, none of Collateral as a result the Senior Representative or any other Senior Secured Party shall take any action to hinder, delay or limit the exercise by the Second Priority Representative or any other Second Priority Debt Party of its enforcement of its rights as any Enforcement Action and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Second Priority Representative and the other Second Priority Debt Parties shall have the exclusive right to commence and maintain an unsecured creditor with respect Enforcement Action or otherwise enforce, collect or realize on the Collateral; provided, however, that to the Subordinated Lien Obligationsextent permitted to do so under applicable law, the Second Priority Representative shall give prompt notice of the commencement of any such judgment Lien shall be subject Enforcement Action to the terms Senior Representative and shall keep Senior Representative reasonably apprised of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreementsuch enforcement action.
(f) Except as specifically set forth Section 3.01 hereof shall not be construed to in Sections 3.1(aany way limit or impair the right of (i) any Senior Secured Party or any Second Priority Debt Party to bid for or purchase Collateral at any private, public or judicial foreclosure upon such Collateral initiated by any of them, (ii) any Second Priority Debt Party to receive any remaining proceeds of Collateral after the Discharge of Senior Priority Obligations, and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or iii) any Subordinated Lien Claimholders Senior Secured Party to receive any remaining proceeds of the required payments of interest, principal and other amounts owed Collateral in respect of the Subordinated Lien Excess Senior Obligations so long as such receipt is not after the direct or indirect result Discharge of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 CollateralSecond Priority Debt Obligations.
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Exercise of Remedies. (a) Until the Discharge of First Senior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor: Junior Agent, and by virtue of accepting the Company or any other GrantorJunior Note, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
each Junior Claimholder agrees that (1i) it (x) will not exercise or seek to exercise any rights or remedies with respect to the Liens on any Junior Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action Exercise of foreclosureSecured Creditor Remedies with respect to any Junior Collateral);
; (2y) will not directly or indirectly contest, protest protest, or object to or hinder or delay in any foreclosure manner (whether by judicial proceeding or action brought otherwise), or otherwise interfere with any Exercise of Secured Creditor Remedies by the First Lien Collateral Senior Agent or any First Lien Senior Claimholder and has no right to direct Senior Agent to Exercise any Secured Creditor Remedies or take any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral action under the First Lien Documents or otherwiseSenior Loan Documents; and
and (3z) subject to their rights under clause (a)(1) above, will not object to (and waives any and all claims with respect to) the forbearance by the First Lien Collateral Senior Agent or the First Lien Senior Claimholders from bringing or pursuing Exercising any foreclosure proceeding or action or any other exercise of any rights or remedies relating to Secured Creditor Remedies and (ii) the Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 Senior Agent and the First Lien Senior Claimholders shall have the exclusive right to enforce rightsrights (including setoff), exercise remedies (including set-offincluding, recoupment without limitation, Exercise of Secured Creditor Remedies) and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the Collateral (including the release, disposition, or restrictions with respect to the Collateral Collateral) without any notice to, consultation with with, or consent of, the consent Junior Agent or any Junior Claimholder;
(b) Except as may be permitted in Section 3.3, the Junior Agent and by virtue of accepting the Junior Notes, the Junior Claimholders, irrevocably, absolutely, and unconditionally waive any and all rights Junior Agent or Junior Claimholders may have as a junior lien creditor or otherwise to object (and seek or be awarded any relief of any nature whatsoever based on any such objection) to the manner in which Senior Agent or any Senior Claimholder (A) enforces or collects (or attempts to collect) the Senior Lien Obligations or (B) realizes or seeks to realize upon or otherwise enforce the Liens in and to the Senior Collateral securing the Senior Lien Obligations, regardless of whether any action or failure to act by or on behalf of Senior Agent or any Senior Claimholder is adverse to the interest of Junior Agent or Junior Claimholders. Without limiting the generality of the Subordinated foregoing, to the maximum extent permitted by law, Junior Claimholders shall be deemed to have hereby irrevocably, absolutely, and unconditionally waived any right to object (and seek or be awarded any relief of any nature whatsoever based on any such objection), at any time prior or subsequent to any disposition of any of the Senior Collateral, on the ground(s) that any such disposition of Senior Collateral Trustee (x) would not be or was not “commercially reasonable” within the meaning of any Subordinated applicable UCC or other applicable law, or (y) would not or did not comply with any other applicable requirement under any applicable UCC or under any other applicable law governing the manner in which a secured creditor (including one with a Lien Claimholder; provided thaton real property) is to realize on its collateral.
(c) The Junior Agent and, by virtue of accepting the Junior Notes, the Lien securing Junior Claimholders acknowledge and agree that no covenant, agreement or restriction contained in the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the First Junior Lien Documents and exercise remedies thereunder, all shall be deemed to restrict 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all any way the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of Senior Agent or any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Senior Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against Senior Collateral as set forth in this Agreement and the Company or any other Grantor;Senior Loan Documents.
(2d) take any action (The Junior Agent and, by virtue of accepting the Junior Notes, the Junior Claimholders acknowledge and agree that they shall not adverse be entitled 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Junior Collateral or any proceeds of Junior Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Junior Collateral (including any Exercise of Secured Creditor Remedies with respect to any Junior Collateral) or by way of distribution in its capacity as a creditorrespect of Junior Collateral or any claim of the Junior Claimholders secured thereby in an Insolvency Proceeding, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Senior Lien Obligations has occurred, except as for actions expressly provided in Sections 3.1(a), 6.3(b) and permitted by Section 3.3 of this Section 3.1(c)Agreement, the sole right of the Subordinated Collateral Trustee Junior Agent and the Subordinated Lien Junior Claimholders with respect to the Junior Collateral is to hold a Lien on the Junior Collateral pursuant to the Subordinated Junior 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 First Senior Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.
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Exercise of Remedies. (a) Until the Discharge of The First Lien Obligations has occurredAgent or other First Lien Claimholders shall, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against subject to subsections (b) and (c) below, have the Company or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholdersexclusive right to:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral commence and maintain an Enforcement Action (including the exercise of any right of setoff rights to set-off their debt), or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)forbear from commencing an Enforcement Action;
(2) will not contestmake determinations regarding the release or disposition of, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to restrictions with respect to, the Collateral under the First Lien Documents or otherwisein connection with any Enforcement Action; and
(3) subject to their rights under clause otherwise enforce (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debtenforce) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC UCC, the Bankruptcy Code and any other applicable law.
(b) Notwithstanding Section 3.1(a), the Second Lien Claimholders may take the actions described in Section 3.1(a)(1) through (3) above, commence an Enforcement Action with respect to a Lien securing a Second Lien Obligation or otherwise exercise rights under applicable law, except as specifically contemplated in Section 6, if:
(1) the Discharge of a secured creditor First Lien Obligations has occurred; or
(2) (i)the Standstill Period has elapsed; and
(ii) the Second Lien Claimholders shall have provided prior written notice of the taking of such actions or the exercising of such rights to the First Lien Agent provided, any credit bid under section 363(k) of the Bankruptcy Laws of any applicable jurisdictionCode (or similar Bankruptcy Law) by the Second Lien Claimholders must comply with the requirements set forth in Section 3.1(c)(3), as applicable.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated The Second Lien Claimholder Claimholders may:
(1) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Collateral securing the First Lien Obligations or First Lien Claimholders’ rights to exercise remedies;
(2) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Agent or other First Lien Claimholder, to the extent that such action does not interfere with the Enforcement Action by the First Lien Agent or such other First Lien Claimholder, but no Second Lien Claimholder may receive any Proceeds thereof unless expressly permitted herein;
(3) bid for or purchase Collateral at any public, private, or judicial foreclosure upon such Collateral initiated by any other person; provided, such bid may not include a credit bid, under section 363(k) of the Bankruptcy Code (or similar Bankruptcy Law), in respect of any Second Lien Obligations unless and to the extent such credit bid provides cash for the payment in full of the First Lien Obligations and otherwise complies with the lien priorities set forth in Section 2.1 and the payment priorities set forth in Section 4.1;
(4) file a claim or proof of claim or statement of interest with respect to the Subordinated Second Lien ObligationsObligations and vote on any chapter 11 plan, in each case, in a manner consistent with Section 6.12; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;or
(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, preserve or protect its Lien on the Collateral;
(35) file any necessary responsive or defensive appropriate pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person a claim objecting to or otherwise seeking the disallowance of the claims of the Subordinated a Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take Obligation or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated securing any 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 First Lien Obligations has occurredObligation.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Grantorcommenced, the Subordinated Collateral Trustee Second Lien Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Lien held by it under the Second Lien Collateral Documents or any other Second Lien Document or otherwise; provided, however, that any Second Lien Agent may take Enforcement Action after a period of at least 180 days has elapsed since the later of: (including i) the exercise date on which a Second Lien Agent declared the existence of any right Event of setoff Default under any Second Lien Document and demanded the repayment of all the principal amount of the applicable Second Lien Obligations; and (ii) the date on which the First Lien Agent received notice from a Second Lien Agent of such a declaration of an Event of Default and demand for repayment (such 180 day period, the “Standstill Period”); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Agent or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute take any action or proceeding Enforcement Action with respect to any Lien held by it under the Second Lien Collateral Documents or any other Second Lien Document or otherwise if, notwithstanding the expiration of the Standstill Period, (i) the First Lien Agent or First Lien Claimholders shall have commenced and are diligently pursuing Enforcement Action with respect to all or any material portion of the Collateral (prompt notice of such rights exercise to be given to the Second Lien Agents) or remedies (including ii) an Insolvency Proceeding shall have been commenced following the date of this Agreement; and provided, further, that in any Insolvency Proceeding, any Second Lien Agent or applicable Second Lien Claimholders may take any action of foreclosureexpressly permitted by Section 3.1(c);
(2) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other commercially reasonable exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseotherwise so long as the Liens granted to secure the Second Lien Obligations of the Second Lien Claimholders attach to the Proceeds thereof to the extent that such Proceeds are not applied to the First Lien Obligations, subject to the relative priorities described in Section 2; and
(3) subject to their rights under clause (a)(1) above, will not contest, protest or object to the forbearance by the 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 Collateral, in each case Enforcement Action so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders attach to the proceeds Proceeds thereof to the extent that such Proceeds are not applied to the First Lien Obligations, subject to the relative priorities described in Section 2.
(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 Grantorcommenced, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rightscommence, exercise remedies (including set-offand if applicable, recoupment and the right to credit bid their debt) maintain an Enforcement Action and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Agents or any Subordinated Second Lien Claimholder; provided thatprovided, that the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds Proceeds of any such Collateral released or disposed of to the extent that such Proceeds are not applied to the First Lien Obligations, subject to the relative priorities described in Section 22 and the applicable release provisions of the Second Lien Documents. In exercising rights and remedies Enforcement Actions with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee any Second Lien Agent and any Subordinated Second Lien Claimholder may:
(1) accelerate their respective Second Lien Obligations and deliver default notices, cease and desist letters and similar notices to CIT, any Issuer or any Obligor;
(2) bid for and purchase, for cash consideration only, any Collateral in any foreclosure proceeding;
(3) file a claim claim, including a proof of claim, or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Obligations in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorProceeding;
(24) 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, preserve or protect its Lien on the Collateral;
(35) 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(46) 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 a manner not inconsistent with the vote of the First Lien Agent or the terms of this Agreement, with respect to the Subordinated Second Lien Obligations and the Collateral; and
(7) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1). The Subordinated Collateral TrusteeEach Second Lien Agent, on behalf of itself and each Subordinated the applicable Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds Proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to Enforcement Action against any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any Enforcement Action expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Agent and Second Lien Claimholders are permitted to retain the Proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b6.4(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee Second Lien Agents and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Documents and applicable law.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b6.4(b):
(1) the Subordinated Collateral Trusteeeach Second Lien Agent, for itself and on behalf of the Subordinated applicable Second Lien Claimholders, agrees that the Subordinated Collateral Trustee such Second Lien Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trusteeeach Second Lien Agent, for itself and on behalf of the Subordinated applicable Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee each Second Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained as expressly provided in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)) and in all cases subject to Sections 4.2 and 4.3, the Subordinated Collateral Trustee each Second Lien Agent and the Subordinated Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company of any Issuer or any other Grantor Obligor that has guaranteed guarantied or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable law, including filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of such Obligors arising under any Insolvency Proceeding, the Bankruptcy Laws or applicable non-bankruptcy law; provided that in the no event may any Second Lien Agent or Second Lien Claimholder file any involuntary petition for bankruptcy against CIT or any other Obligor; and provided, further, that any Subordinated lawsuit filed to collect any Second Lien Obligations shall only seek a money judgment and shall not seek to enforce or impose any lien on any Collateral and if, notwithstanding the foregoing, any Second Lien Claimholder becomes a judgment Lien lien creditor in respect of Collateral as a result of its permitted enforcement of its rights as an unsecured creditor with respect to the Subordinated Second Lien Obligations, such judgment Lien lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Senior Intercreditor and Subordination Agreement (Cit Group Inc)
Exercise of Remedies. (a) 3.1. Exercise of Remedies with respect to the ABL Priority Collateral. Until the Discharge Payment in Full of First Lien Obligations ABL Priority Debt has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
Term Claimholders will not: (1i) will not exercise or seek to exercise (and instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived, but solely to the extent necessary to further the purpose of this Section) any rights rights, powers or remedies with respect to any ABL Priority Collateral (including the exercise of taking any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding Enforcement Action with respect to such rights any ABL Priority Collateral); (ii) commence or remedies join with any person (including in each case other than with the ABL Agent) in commencing, or filing a petition for, any action of foreclosure);
Insolvency Proceeding against any Grantor; or (2iii) will not contest, protest or object to (or join any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3party objecting to) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral ABL Agent or the First Lien ABL Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral; provided, in each case however, that (w) if a Term Default has occurred and for so long as such Term Default is continuing, subject at all times to the Liens granted provisions of Sections 2.1(a) and 4, after the expiration of a 180-day period (the “ABL Priority Standstill Period”) which shall commence on the date of receipt by the ABL Agent of written notification from the Term Agent (based on notification received from the Initial Term Representative or any Additional Term Representative pursuant to secure the Subordinated Lien Obligations Term Intercreditor Agreement) of (i) the occurrence of a Term Default, and (ii) the Company having been notified of the Subordinated Lien Claimholders attach to acceleration of payment of some or all of the proceeds thereof Term Debt and the termination of all related commitments under the applicable Term Credit Facility Agreement (subject to the relative priorities described tolling of such period to the extent, and for the duration of, any period for which a stay of enforcement rights may be in Section 2.effect), the Term Agent may (acting pursuant to an Act of Required Secured Parties) take action to enforce its second-priority Liens on the ABL Priority Collateral upon 30 days’ prior written notice to the ABL Agent (which notice may be given prior to the completion of such 180-day period, but not prior to the 150th day of such period); (x) if any of the ABL Agent or the ABL Claimholders are stayed or otherwise prohibited from commencing and continuing to exercise any Enforcement Action or to liquidate or sell any ABL Priority Collateral by operation of law, court order or otherwise, then the 180-day period shall be tolled during the pendency of such stay or other
(b) 3.2. Exercise of Remedies with respect to the Term Priority Collateral. Until the Discharge Payment in Full of First Lien Obligations Term Priority Debt has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Company ABL Claimholders will not: (i) exercise or seek to exercise (and instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived, but solely to the extent necessary to further the purpose of this Section) any rights, powers or remedies with respect to any Term Priority Collateral (including taking any Enforcement Action with respect to any Term Priority Collateral); (ii) commence or join with any person (in each case other than with the Term Agent) in commencing, or filing a petition for, any Insolvency Proceeding against any Grantor; or (iii) object to (or join any party objecting to) the forbearance by the Term Agent or the Term Claimholders from bringing or pursuing any foreclosure proceeding or action or any other Grantorexercise of any rights or remedies relating to the Term Priority Collateral; provided, however, that (w) if an ABL Default has occurred and for so long as such ABL Default is continuing, subject at all times to the provisions of Sections 2.1(a) and 4, after the expiration of a 180-day period (the “Term Priority Standstill Period”) which shall commence on the date of receipt by the Term Agent of the written declaration of the ABL Agent of such ABL Default and written demand by the ABL Agent to the ABL Borrower Representative for the accelerated payment of all ABL Debt and the termination of all related commitments under the ABL Credit Agreement (subject to the tolling of such period to the extent, and for the duration of, any period for which a stay of enforcement rights may be in effect), the First Lien Collateral ABL Agent and the First Lien Claimholders shall have the exclusive right may take action to enforce rightsits second-priority Liens on the Term Priority Collateral upon 30 days’ prior written notice to the Term Agent (which notice may be given prior to the completion of such 180-day period, but not prior to the 150th day of such period); (x) if any of the Term Agent or the Term Claimholders are stayed or otherwise prohibited from commencing and continuing to exercise any Enforcement Action or to liquidate or sell any Term Priority Collateral by operation of law, court order or otherwise, then the 180-day period shall be tolled during the pendency of such stay or other prohibition, plus an additional number of days such that the Term Priority Standstill Period extends at least 45 days after the applicable stay or other prohibition on enforcement are no longer in effect; (y) notwithstanding the foregoing, in no event shall the ABL Agent or any ABL Claimholder take any Enforcement Action or exercise or continue to exercise any rights or remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to Term Priority Collateral if, notwithstanding the Collateral without any consultation with or the consent expiration of the Subordinated Collateral Trustee or Term Priority Standstill Period, any Subordinated Lien Claimholder; provided that, Term Claimholder shall have commenced and be pursuing the Lien securing the Subordinated Lien Obligations shall remain on the proceeds exercise of such Collateral released or disposed any of subject to the relative priorities described in Section 2. In exercising its rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions all or any material portion of the First Lien Documents and Term Priority Collateral (subject to Section 3.8(c), prompt notice of such 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect be given to the Subordinated Lien ObligationsABL Agent); provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
and (2z) 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 nothing 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), 3.2 shall limit the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral ABL Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Credit Agreement and Security Agreement (Alpha Metallurgical Resources, Inc.)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred (and, in the case of the Third Lien Secured Parties, until the Discharge of Second Lien Obligations has occurred), whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company Grantors, the Second Lien Secured Parties and the Third Lien Secured Parties:
(i) will not institute or seek to institute any Enforcement Action; provided, however, that prior to the Discharge of First Lien Obligations, the Second Lien Collateral Agent may exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (A) the date on which the applicable Debt Representative declares the existence of a Second Lien Debt Default under the applicable Second Lien Financing Documents of any Series so long as such Second Lien Debt Default is continuing and demands the repayment of all the principal amount of the Second Lien Obligations of such Series; and (B) the date on which the First Lien Collateral Agent receives notice from the applicable Debt Representative of such declaration of a Second Lien Debt Default so long as such Second Lien Debt Default is continuing (the “Second Lien Standstill Period”); provided, further, however, that prior to the occurrence of both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Lien Collateral Agent may exercise any or all such rights or remedies after the passage of a period of at least 240 days has elapsed since the later of: (A) the date on which the applicable Debt Representative declares the existence of a Third Lien Debt Default under the applicable Third Lien Financing Documents of any Series so long as such Third Lien Debt Default is continuing and demands the repayment of all the principal amount of the Third Lien Obligations of such Series; and (B) the date on which each of the First Lien Collateral Agent and the Second Lien Collateral Agent has received notice from the applicable Debt Representative of such declaration of a Third Lien Debt Default so long as such Third Lien Debt Default is continuing (the “Third Lien Standstill Period”, and together with the Second Lien Standstill Period, the “Standstill Periods”); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agent, Third Lien Collateral Agent or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders:
(1) will not exercise Secured Party or seek to Third Lien Secured Party exercise any rights or remedies with respect to the Collateral if (A) notwithstanding the expiration of the applicable Standstill Period, the First Lien Collateral Agent or any other First Lien Secured Party (or, as to any Third Lien Secured Party, the Second Lien Collateral (including Agent or any other Second Lien Secured Party) shall have commenced and be diligently pursuing the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding Enforcement Action with respect to all or any material portion of the Collateral and shall have provided notice of the commencement of such rights exercise to the Second Lien Collateral Agent and/or the Third Lien Collateral Agent, as applicable or remedies (including B) at any action time the Grantor which has granted a security interest in such Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding except solely for and to the extent of foreclosure)the actions expressly permitted to be taken in any such Insolvency or Liquidation Proceeding pursuant to the provisions of Article VI;
(2ii) will not contest, protest protest, hinder, delay or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder Secured Party (and, in the case of the Third Lien Secured Parties, by any Second Lien Secured Party) or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Secured Party (and, in the case of the Third Lien Secured Parties, by any Second Lien Secured Party) of any rights and remedies relating to the Collateral under the First Lien Financing Documents (and, in the case of the Third Lien Secured Parties, the Second Lien Financing Documents) or otherwise; and
(3iii) subject to their rights under clause (a)(1) aboveSection 3.1(a)(i), except as may be permitted in Section 3.1(d), will not object to the forbearance by the First Lien Collateral Agent or Secured Parties (and, in the First case of the Third Lien Claimholders Secured Parties, by the Second Lien Secured Parties) from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; provided that such forbearance shall not toll any Standstill Period; provided that, in each the case so long as of (i), (ii) and (iii) of this Section 3.1(a), the Liens granted to secure the Subordinated Second Lien Obligations of and the Subordinated Third Lien Claimholders Obligations shall attach to any proceeds resulting from actions taken by the proceeds thereof First Lien Collateral Agent or any other Secured Party in accordance with this Agreement subject to the relative priorities described in Section 2.
(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, subject to Section 3.1(a)(i), the First Lien Collateral Agent and the First Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment setoff and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, exercise of remedies or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second Lien Secured Party or any Subordinated Third Lien ClaimholderSecured Party; provided that, subject to Section 5.1, the Lien securing the Subordinated Second Lien Obligations and the Lien securing the Third Lien Obligations shall remain on the proceeds of such Collateral released or disposed of in connection with such exercise of remedies subject to the relative priorities described in Section 22 and only to the extent such proceeds were not applied to the Discharge of First Lien Obligations. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the other First Lien Claimholders Secured Parties may enforce the provisions of the First Lien Financing 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 right to an agent appointed by them the First Lien Collateral Agent or any other First Lien Secured Party to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or dispositionDisposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding Until the foregoingDischarge of First Lien Obligations and the Discharge of Second Lien Obligations both have occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, subject to Section 3.1(a)(i), the Subordinated Second Lien Secured Parties shall have the right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the exercise of remedies or with respect to the Collateral Trustee without any consultation with or the consent of any Third Lien Secured Party; provided that, subject to Section 5.1, the Lien securing the Third Lien Obligations shall remain on the proceeds of such Collateral disposed of in connection with such exercise of remedies subject to the relative priorities described in Section 2 and only to the extent such proceeds were not applied to the Discharge of Second Lien Obligations. In exercising rights and remedies with respect to the Collateral, the Second Lien Collateral Agent and the other Second Lien Secured Parties may enforce the provisions of the Second Lien Financing 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 right to an agent appointed by the Second Lien Collateral Agent or any Subordinated other Second Lien Claimholder Secured Party to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction
(d) Notwithstanding anything to the contrary in this Agreement, but subject to Section 10.24, the Second Lien Collateral Agent or any other Second Lien Secured Party, or the Third Lien Collateral Agent or any other Third Lien Secured Party may:
(1i) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations or the Third Lien Obligations, as applicable; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) take any action ((A) not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of any of the First Lien Secured Parties to exercise remedies in respect thereof, and (B) in the case of actions by the Third Lien Collateral Agent or any other Third Lien Secured Party, not adverse to the First priority status of the Liens on the Collateral securing the Second Lien Claimholders Obligations, or the rights of any of the Second Lien Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien ClaimholdersSecured Parties or the Third Lien Secured Parties, as applicable, including any claims secured by the Collateral, if any, or otherwise make any agreements or file any motions or objections pertaining to the claims of the Second Lien Secured Parties or the Third Lien Secured Parties, as applicable, in each case in accordance with and not inconsistent with the terms of this Agreement; and;
(4iv) file any pleadings, objections, motions or agreements (x) which assert rights or interests available to unsecured creditors of the Grantors or (y) in the case of a sale or other Disposition of any Collateral free and clear of its Liens or other claims under Section 363 of the Bankruptcy Code, which assert rights or interests available to secured creditors of the Grantors, in each case arising under either any Insolvency or Liquidation Proceeding or applicable non-Bankruptcy Law, in each case not inconsistent with the terms of this Agreement;
(v) 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 and not inconsistent with the terms of this Agreement, with respect to the Subordinated Second Lien Obligations or the Third Lien Obligations, as applicable, and the Collateral;
(vi) file any pleadings, objections, motions, or agreements that assert rights or interests available to unsecured creditors of any Grantor arising under the Bankruptcy Code, any similar law, or any applicable law, but in each case in accordance with the terms of this Agreement (it being understood that, without limiting the generality of the foregoing, exercising the right, if any, of any Secured Party (in its capacity as such) other than the First Lien Collateral Agent to file an involuntary petition against any Grantor shall not be in accordance with the terms of this Agreement);
(vii) exercise any other rights and remedies as an unsecured creditor against any Grantor in accordance with the provisions of the applicable Financing Documents and applicable law, but in each case in accordance with the terms of this Agreement; and
(viii) exercise any of its rights or remedies with respect to the Collateral after the termination of the applicable Standstill Period to the extent permitted by Section 3.1(a)(i). The Subordinated For avoidance of doubt, but subject to Section 10.24, any Secured Party (to the extent such party is entitled to do so under its applicable Financing Documents and applicable law) may seek any equitable relief (including injunctive relief) available to such Secured Party (including as undersecured or unsecured creditor) in accordance with the terms of the applicable Financing Documents and applicable law, but in each case in accordance with the terms of this Agreement (it being understood that, without limiting the generality of the foregoing, any such equitable relief that would impair or otherwise adversely impact the Collateral Trusteeor that would impair, delay, limit, or otherwise adversely affect the exercise of any right or remedy of the First Lien Collateral Agent or any other First Lien Secured Party in connection with any Collateral shall not be in accordance with this Agreement; provided, however, that the mere incurrence of costs, fees and expenses of the Tribe, the Authority or any other Grantor in defending such action shall not in itself be deemed to impair or otherwise adversely impact the Collateral or impair, delay, limit or adversely affect the exercise of any right or remedy of the First Lien Collateral Agent or any other First Lien Secured Party). Nothing contained in this Agreement shall be deemed to constitute an acknowledgment by any party hereto that any Secured Parties are entitled to be granted any equitable relief in their favor, and any party hereto (through their respective Authorized Collateral Agent or Debt Representative, if applicable) shall be entitled to oppose the granting of any such requested equitable relief on any grounds, including under this Agreement or applicable law. Subject to Sections 3.1(a), 3.1(d) and 6.3(b), the Second Lien Collateral Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, and the Third Lien Collateral Agent, on behalf of itself and the Third Lien Secured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral Enforcement Action in its capacity as a creditor, unless and creditor until the Discharge of First Lien Obligations has shall have occurred, and, in respect of the Third Lien Collateral Agent, until the Discharge of Second Lien Obligations shall have occurred, or in each case as otherwise expressly permitted under this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations (and, as to the Third Lien Secured Parties, the Discharge of Second Lien Obligations) has occurred, except as expressly provided in Sections Section 3.1(a), 6.3(bthis Section 3.1(d) and this Section 3.1(c6.3(b), the sole right of the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Second Lien Collateral Financing 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 Lien Obligations has occurred, and the sole right of the Third Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Third Lien Financing 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 Lien Obligations and after the Discharge of Second Lien Obligations have both occurred.
(de) Subject to Sections 3.1(c3.1(a), 3.1(d) and Section 6.3(b):
(1i) (A) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders Secured Parties will not take any action with respect to the Collateral that would hinder any exercise of remedies under the First Lien Financing Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition Disposition of the Collateral, whether by foreclosure or otherwise, and (B) the Third Lien Collateral Agent, for itself and on behalf of the Third Lien Secured Parties, agrees that the Third Lien Secured Parties will not take any action with respect to the Collateral that would hinder any exercise of remedies under the First Lien Financing Documents or the Second Lien Financing Documents, or that is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other Disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) (A) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.an
Appears in 1 contract
Sources: Collateral Agency and Intercreditor Agreement (Mohegan Tribal Gaming Authority)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether Whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Issuer or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) Until the first to occur of either the Discharge of Senior Lien Obligations or the Second Lien Maturity Date, but subject to the limited rights of the Second Lien Claimholders under 4.1 to make demand for and receive payment of interest in the specific circumstances provided in that Section, and the Second Lien Claimholders’ rights under Section 3.3, the Second Lien Claimholders will not make any demand for or accept any payment under the Second Lien Notes or exercise or seek to exercise any other rights or remedies with in respect to any Collateral of the Second Lien Obligations (including set-off) under any Second Lien Note Documents (including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement Second Lien Collateral Document to which the Subordinated Collateral Trustee or any Subordinated a Second Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (for avoidance of doubt, no such action may be taken by or on behalf of any Second Lien Claimholders against any of Issuer, any Second Lien Guarantor or any Second Lien Subordinated Guarantor, nor may any payment be received therefrom (except as permitted in Section 4.1 of this Agreement) until the Discharge of Senior Lien Obligations has occurred);
(2ii) Except to the extent permitted in Section 6.5 of this Agreement, no Second Lien Claimholder will not at any time (regardless of whether the Second Lien Maturity Date has occurred) (a) contest, protest or object to any enforcement or foreclosure proceeding or action brought by the First Senior Lien Collateral Agent or any First Senior Lien Claimholder or any other exercise by the First Senior Lien Collateral Agent or any First Senior Lien Claimholder Claimholder, of any rights and remedies relating to the Collateral under the First Senior Lien Note Documents or otherwise; and
, or (3b) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Senior Lien Collateral Agent or the First Senior Lien Claimholders from bringing or pursuing any enforcement or foreclosure proceeding or action or any other exercise of any rights or remedies relating to against the CollateralIssuer or the Guarantor, in each case so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Second Lien Claimholders attach to the proceeds thereof of foreclosure proceedings against the Collateral, subject to the relative priorities described in Section 2.2 hereof; and
(biii) Until the first to occur of either the Discharge of First Senior Lien Obligations has occurredor the Second Lien Maturity Date, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against but subject to the Company or any other Grantorlimited rights of the Second Lien Claimholders under 4.1 to make demand for and receive payment of interest in the specific circumstances provided in that Section, and the Second Lien Claimholders’ rights under Section 3.3, the First Senior Lien Collateral Agent and the First Senior Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, disposition or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder; provided provided, however, that, regardless of whether the Second Lien Maturity Date has occurred, (A) in any Insolvency Proceeding commenced by or against the Issuer or any other Grantor, any Second Lien Claimholder may file a proof of claim or statement of interest with respect to the Second Lien Obligations, (B) any Second Lien Claimholder may take any action (not adverse to the prior Liens on the Collateral securing the Subordinated Senior Lien Obligations, or the rights of the Senior Lien Collateral Agent or any Senior Lien Claimholders to exercise remedies in respect thereof and not inconsistent with the term of this Agreement) in order to preserve or protect its Lien on the Collateral, (C) 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement, and (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 shall remain on and the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. Collateral.
(b) In exercising rights and remedies with respect to the CollateralCollateral at any time, the First Senior Lien Collateral Agent and the First Senior Lien Claimholders may at any time (regardless of whether the Second Lien Maturity Date has occurred) enforce the provisions of the First Senior Lien Note 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding Until the foregoingfirst to occur of either the Discharge of Senior Lien Obligations or the Second Lien Maturity Date, but subject to the Subordinated Collateral Trustee limited rights of the Second Lien Claimholders under 4.1 to make demand for and any Subordinated Lien Claimholder may:
(1) file a claim or statement receive payment of interest with respect to in the Subordinated specific circumstances provided in that Section, and the Second Lien Obligations; provided that an Claimholders’ rights under Section 3.3, and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Issuer or any other Grantor;
(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 Second Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions agree that are, in each case, in accordance with the terms of this Agreement, with respect to the Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it they will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurredCollateral. Without limiting the generality of the foregoing, unless and until the first to occur of either the Discharge of First Senior Lien Obligations has occurredor the Second Lien Maturity Date, except as expressly but subject to the limited rights of the Second Lien Claimholders under 4.1 to make demand for and receive payment of interest in the specific circumstances provided in Sections 3.1(a)that Section, 6.3(b) and this the Second Lien Claimholders’ rights under Section 3.1(c)3.3, the sole right of the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First the Senior Lien Obligations has occurredoccurred and otherwise in accordance with the terms of the Second Lien Note Documents and applicable law.
(d) Subject Without waiving any of their rights to Sections 3.1(c) and at any time take the actions permitted in Section 6.3(b):
(1) 6.5 of this Agreement, the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees (i) agree that both before and after the Subordinated Collateral Trustee and Second Lien Maturity Date, the Subordinated Second Lien Claimholders will not take any action that would hinder any current exercise of remedies under the First Senior Lien Note Documents or that is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives waive any and all rights it or the Subordinated Lien Claimholders they may have as a junior lien creditor or otherwise to object to the manner in which the First Senior Lien Collateral Agent or the First Senior Lien Claimholders seek to enforce or collect the First Senior Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Senior Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First Senior Lien Collateral Agent or First Senior Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and.
(3e) All enforcement actions of the Subordinated Collateral Trustee Senior Lien Claimholders taken by them or on their behalf shall be subject to the requirement that such enforcement action on the part of the Senior Lien Claimholders is commercially reasonable under the circumstances and in compliance with applicable law. All actions of the Senior Lien Claimholders shall be presumed to be commercially reasonable for all purposes hereunder unless and until a contrary determination is made by final, non-appealable order of a court of competent jurisdiction.
(f) Each Second Lien Claimholder hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Note Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Senior Lien Collateral Agent or the First Senior Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Senior Lien Note Documents.
(eg) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated The Senior Lien Claimholders may exercise rights acknowledge and remedies as unsecured creditors against agree that, if any portion of the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated principal amount of Second Lien Obligations in accordance with remains due, owing and unpaid by the terms of Issuer after the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated Lien ObligationsSecond Line Maturity Date, such judgment Lien shall be then subject to the terms of this Agreement, including without limitation the continuing agreements of the Second Lien Claimholders with respect to (i) the priority of Liens set forth in Section 2 of this Agreement for all purposes and (ii) the subordination of right of payment and turnover of unauthorized payments set forth in Section 4 of this Agreement, then from and after such Second Lien Maturity Date, the Second Lien Claimholders may take any enforcement action available to them by contract, at law or in equity, including without limitation commencement of an involuntary bankruptcy case or other Insolvency Proceeding and prosecute the same to completion, provided that (x) such action is not in relation violation of this Agreement and (y) until the Discharge of First Lien Obligations, any proceeds of the prosecution or settlement of such action or the enforcement of any judgment resulting therefrom, or other payments or transfers received on account of the Second Lien Obligations, are turned over to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject Claimholders pursuant to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 and Subordination Agreement (FriendFinder Networks Inc.)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether Whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Administrative Borrower or any other Grantor, (A) so long as the Subordinated Collateral Trustee and Discharge of First Lien Priority Obligations has not occurred, neither the Subordinated Second Lien ClaimholdersSecurity Agent nor any of the other Second Lien Secured Parties:
(1i) (x) will not exercise institute or seek commence or join with any Person (other than the First Lien Security Agent and the other First Lien Secured Parties) in commencing any Enforcement Action with respect to the Collateral (including any action of receivership, foreclosure, enforcement, collection or execution); provided, however, that the Directing Second Lien Security Agent may exercise any rights or remedies all such Enforcement Action in accordance with the Second Lien Documents after a period of 180 days has elapsed since the date of delivery of a notice in writing to the Directing First Lien Security Agent with respect to any of the following and so long as the respective Event of Default shall not have been cured or waived (or the respective acceleration rescinded): (i) a Payment Event of Default exists with respect to any Second Lien Obligations without waiver or cure for 10 days, (ii) an Insolvency Event of Default exists with respect to any Second Lien Obligations or (iii) after the acceleration by the relevant Second Lien Secured Parties of the maturity of all then outstanding Second Lien Obligations (the “Second Lien Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the Directing Second Lien Security Agent nor any other Second Lien Secured Party (I) will exercise any Enforcement Action with respect to any Collateral (including if, notwithstanding the exercise expiration of any right of setoff the Second Lien Standstill Period, the Directing First Lien Security Agent or any right under other First Lien Secured Party shall have commenced and be diligently pursuing in good faith any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding Enforcement Action with respect to all or a material portion of the Collateral (prompt notice of such rights exercise to be given by the Directing First Lien Security Agent to the Directing Second Lien Security Agent) or remedies any Insolvency or Liquidation Proceeding by or against any Grantor has been commenced, (including any action of foreclosure);
(2II) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the Directing First Lien Collateral Security Agent or any other First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating Secured Party with respect to the Collateral under the First Lien Documents or otherwise; and
and (3III) subject to their rights under the first proviso in clause (a)(1i)(x) above, will not object to the forbearance by the Directing First Lien Collateral Security Agent or the any other First Lien Claimholders Secured Party from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies Enforcement Action relating to the Collateral, in each case in compliance with this Agreement so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Second Lien Claimholders Secured Parties attach to the proceeds Proceeds thereof subject to the relative priorities described in Section 2.; provided, however, that nothing in this Section 3.1(a) shall be construed to authorize the Second Lien Security Agent or any Second Lien Secured Party to sell or appropriate any Collateral free of the Lien of the First Lien Security Agent or any First Lien Secured Party; and
(bii) Until the subject to clause (i)(x) above, until 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 GrantorPriority Obligations, the Directing First Lien Collateral Security Agent and the First Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies commence and maintain any Enforcement Action (including set-set off, recoupment recoupment, and the right to credit bid their debtrights) and, subject to Section 5.1, to and make determinations regarding the release, dispositiondisposition of, or restrictions with respect to to, the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Security Agent or any Subordinated other Second Lien ClaimholderSecured Party; provided that any proceeds received by the First Lien Security Agent in excess of those necessary to achieve a Discharge of First Lien Priority Obligations are distributed in accordance with Section 5.1; provided further that:
(A) in any Insolvency or Liquidation Proceeding commenced by or against the Administrative Borrower or any other Grantor, the Second Lien Security Agent and any other Second Lien Secured Party may file a proof of claim or statement of interest with respect to the Second Lien Obligations;
(B) the Second Lien Security Agent and any other Second Lien Secured Party may take any action (not in contravention of this Agreement or otherwise adverse to the priority status of the Liens on the Collateral securing the Subordinated First Lien Obligations Obligations, or the rights of the First Lien Security Agent or the other First Lien Secured Parties to exercise remedies in respect thereof) in accordance with the Second Lien Documents and the terms of this Agreement in order to create, perfect, preserve or protect (but not enforce) its Lien on or over the Collateral;
(C) the Second Lien Secured Parties shall remain 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, in each case in accordance with 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 Debtor Relief Laws, any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case to the extent not prohibited by any other provision of this Agreement;
(E) the Second Lien Secured Parties shall be entitled to vote on any plan of reorganization or other dispositive restructuring plan (except they may not, whether in the capacity of a secured or an unsecured creditor, vote to accept or otherwise propose or support any plan of reorganization or other dispositive restructuring plan that is inconsistent with or contravenes any provision of this Agreement) and make other filings and make any arguments and motions that are, in each case, in accordance with and do not contravene (or seek relief that would contravene) the terms of this Agreement (including under Section 3.1(a)(i)), with respect to the Collateral;
(F) [Reserved];
(G) the Second Lien Secured Parties shall be entitled to bid or purchase Collateral, provided that the net cash proceeds of such Collateral released bid are applied in accordance with Section 5.1 and are sufficient to cause the Discharge of First Lien Priority Obligations;
(H) the Second Lien Secured Parties shall be entitled to seek or disposed request adequate protection in accordance with Section 3.4(c);
(I) the Second Lien Secured Parties shall be entitled to accelerate the maturity of subject all then outstanding Second Lien Obligations and, to the relative priorities described extent not prohibited by this Agreement, enforce the terms of the Second Lien Documents by seeking specific performance;
(J) the Second Lien Secured Parties shall be entitled to assert any inspection right to the extent that such inspection is at the expense of such Second Lien Secured Parties and does not interfere with the exercise of any Enforcement Action by the First Lien Secured Parties, as reasonably determined by the Directing First Lien Security Agent;
(K) to the extent not in direct or indirect violation of the terms of this Agreement, enforce any intercreditor agreements among the Second Lien Security Agent (and/or the Second Lien Lenders), and third parties to the extent not in direct or indirect violation thereof; and
(L) the Second Lien Security Agent or any Second Lien Secured Party may exercise any of its rights or remedies with respect to the Collateral in accordance with the Second Lien Documents after the termination of the Second Lien Standstill Period to the extent permitted by clause (i)(x) above. Subject to Section 2. In 5 and clause (i)(x) above, in exercising rights and remedies any Enforcement Action with respect to the Collateral, the Directing First Lien Collateral Security Agent and the other First Lien Claimholders Secured Parties may enforce the provisions of the First Lien Documents and exercise remedies Enforcement Actions 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 Collateral upon foreclosure, to incur expenses in connection with such sale or dispositionDisposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any other applicable jurisdictionlaw.
(b) [Reserved].
(c) Notwithstanding So long as the foregoingDischarge of First Lien Priority Obligations has not occurred, the Subordinated Collateral Trustee and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeSecurity Agent, on behalf of itself and each Subordinated the other Second Lien ClaimholderSecured Parties, agrees that it will not take or receive any Collateral or any proceeds Proceeds of Collateral in connection with the exercise of any right or remedy Enforcement Action (including set-off and setoff or recoupment) with respect to any Collateral, except as expressly provided in the first proviso of clause (i)(x) of Section 3.1(a) with any such Collateral or Proceeds to be applied in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurredany event pursuant to Section 2.4. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Priority Obligations has occurred, except as expressly provided in Sections the first proviso in clause (i)(x) of Section 3.1(a), 6.3(b) and this or in the proviso in clause (ii) of Section 3.1(c3.1(a) or in 3.3(f)(vii), the sole right of the Subordinated Collateral Trustee Second Lien Security Agent and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Second Lien Collateral 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 First Lien Priority Obligations has occurredoccurred in accordance with the terms hereof, the Second Lien Documents and applicable law.
(d) Subject to Sections 3.1(cthe first proviso in clause (i)(x) of Section 3.1(a), the proviso in clause (ii) of Section 3.1(a) and Section 6.3(b):3.3(f)(vii), until Discharge of First Lien Priority Obligations:
(1i) the Subordinated Collateral TrusteeSecond Lien Security Agent, for itself and on behalf of the Subordinated other Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders it will not take any action that would hinder hinder, delay, limit, interfere with, or prohibit any exercise of remedies Enforcement Actions under the First Lien Documents or is otherwise prohibited hereunderwith respect to the Collateral, including any collection, sale, lease, exchange, transfer or other disposition Disposition of the Collateral, whether by foreclosure or otherwise;, or that would limit, invalidate, avoid or set aside any Lien or First Lien Security Document with respect to the Collateral or subordinate the priority of the First Lien Priority Obligations to the Second Lien Obligations with respect to the Collateral or grant the Liens with respect to the Collateral securing the Second Lien Obligations equal ranking to the Liens with respect to the Collateral securing the First Lien Priority Obligations, and
(2ii) the Subordinated Collateral TrusteeSecond Lien Security Agent, for itself and on behalf of the Subordinated other Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated other Second Lien Claimholders Secured Parties may have as a junior lien Lien creditor with respect to the Collateral or otherwise to object to the manner in which the First Lien Collateral Security Agent or the other First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Priority Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken Collateral, in accordance with any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Security Agent or First Lien Claimholders Secured Parties is adverse to the interest of the Subordinated Second Lien Claimholders; andSecured Parties.
(3e) The Second Lien Security Agent for itself and on behalf of the Subordinated Collateral Trustee other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Security Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Senior 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:,
(1i) neither the Second Priority Representative nor any Second Priority Debt Party will not (A) exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Collateral (including the exercise in respect of any right of setoff or any right under any lockbox agreementSecond Priority Debt Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
; provided, that, subject to extension as a result of any Permitted Delay, the 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 (such period, as extended as a result of any Permitted Delay, the “Standstill Period”) of 180 consecutive days has elapsed from the date of delivery of written notice from the Second Priority Representative to the Senior Representative stating that (1) an Event of Default (as defined under the Second Priority Debt Documents) has occurred and is continuing thereunder, (2) will 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 (3) the 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 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 (any such period while the Senior Representatives or Senior Secured Parties are diligently pursuing such rights and remedies or making any such attempt or any such Grantor is a debtor, a “Permitted Delay”), (B) contest, protest or object to any foreclosure proceeding or action brought with respect to the Collateral by the First Lien Collateral Agent Senior Representative or any First Lien Claimholder Senior Secured Party in respect of the Senior Obligations, the exercise of any right by the Senior Representative or any Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Representative or any Senior 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 First Lien Claimholder such party of any rights and remedies relating to the Collateral under the First Lien Senior Debt Documents or otherwise; and
otherwise in respect of the Senior Obligations, (3C) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action during the Standstill Period or any other exercise of any rights or remedies relating to the CollateralCollateral in respect of Senior Obligations or (D) credit bid (it being understood, in each case so long as for the Liens granted avoidance of doubt, that a credit bid which includes a cash portion sufficient to secure the Subordinated Lien cause a Discharge of Senior Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.will not be precluded), and
(bii) 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 Grantorexcept as otherwise provided herein, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-offsetoff, recoupment and the right to credit bid their debt, except that the Second Priority Debt Parties shall have the credit bidding rights set forth in Section 3.01(a)(i)(D)) and, in that connection, subject to Section 5.15.01, to make determinations regarding the release, disposition, disposition or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second Priority Representative or any Subordinated Second Priority Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, any Second Priority Representative may file a claim, proof of claim, or statement of interest with respect to the Second Priority Debt Obligations under the Second Priority Debt Facility, (B) any Second Priority Representative may take any action (not adverse to the prior Liens on the Collateral securing the Senior Obligations or the rights of the Senior Representative or the Senior 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 Claimholder; provided thaton, the Lien securing Collateral, (C) the Subordinated Lien Obligations shall remain 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) the Second Priority Representative may exercise the rights and remedies provided for in Article VI, (E) in any Insolvency or Liquidation Proceeding, 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 of the claims or Liens of the Second Priority Debt Parties, including without limitation any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement, (F) in any Insolvency or Liquidation Proceeding, the Second Priority Debt Parties may vote on the proceeds any plan of such Collateral released or disposed of subject reorganization, but only to the relative priorities described in extent consistent with the provisions hereof, and (G) the Second Priority Representative and the Second Priority Debt Parties may exercise any of their rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 23.01(a)(i). In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties may enforce the provisions of the First Lien Senior 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 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 creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding Until the foregoingexpiration of the Standstill Period and subject to Section 4.02, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeSecond Priority Representative, on behalf of itself and each Subordinated Lien ClaimholderSecond Priority Debt Party under the Second Priority Debt Facility, agrees that it will not not, in the context of its role as secured creditor, take or receive any Collateral or any proceeds Proceeds of Collateral in connection with the exercise of any right or remedy (including set-off setoff and recoupment) with respect to any Collateral in its capacity as a creditor, unless and respect of Second Priority Debt Obligations until after the Discharge of First Lien Senior Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.01(a)(i), but then only to the extent the Second Priority Representative and Second Priority Debt Parties are permitted to retain the proceeds thereof in accordance with Section 4.02. Without limiting the generality of the foregoing, unless and until the Discharge expiration of First Lien Obligations the Standstill Period has occurred, except as expressly provided in Sections 3.1(a), 6.3(bthe proviso in clause (ii) of Section 3.01(a) and this Section 3.1(c)6.03, the sole right of the Subordinated Collateral Trustee Second Priority Representative and the Subordinated Lien Claimholders Second Priority Debt Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of Second Priority Debt Obligations pursuant to the Subordinated Lien Collateral Second Priority 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 First Lien Senior Obligations has occurred.
(dc) Subject to Sections 3.1(cthe proviso in clause (ii) of Section 3.01(a) and Section 6.3(b):
6.03, (1i) the Subordinated Collateral TrusteeSecond Priority Representative, for itself and on behalf of each Second Priority Debt Party under the Subordinated Lien ClaimholdersSecond Priority Debt Facility, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders neither such Second Priority Representative nor any such Second Priority Debt Party will not take any action that would hinder any exercise of remedies undertaken by the Senior Representative or any Senior Secured Party with respect to the Collateral under the First Lien Documents or is otherwise prohibited hereunderSenior Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral TrusteeSecond Priority Representative, for itself and on behalf of each Second Priority Debt Party under the Subordinated Lien ClaimholdersSecond Priority Debt Facility, hereby waives any and all rights it or the Subordinated Lien Claimholders any such Second Priority Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Parties seek to enforce or collect the First Lien Senior Obligations or the Liens securing the First Lien Obligations granted in on any of the First Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent Senior Representative or First Lien Claimholders any other Senior Secured Party is adverse to the interest interests of the Subordinated Lien Claimholders; andSecond Priority Debt Parties.
(3d) Until the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies expiration of the First Lien Collateral Agent Standstill Period, the Senior Representative shall have the exclusive right to exercise any right or the First Lien Claimholders remedy with respect to the Collateral as set forth in this Agreement and shall have the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) exclusive right to determine and (d)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 Subordinated Collateral Trustee and Second Priority Representative shall have the Subordinated Lien Claimholders may exclusive right to exercise rights and remedies as unsecured creditors against the Company any right or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor remedy with respect to the Subordinated Lien ObligationsCollateral, such judgment Lien and the Second Priority Representative shall be subject 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 terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 Second Priority Debt Parties with respect to the First Lien Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representative, or for the taking of any other action authorized by the Second Priority Collateral Documents.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Magnum Hunter Resources Corp)
Exercise of Remedies. Restrictions on Collateral Trustee, Priority Lien Representatives and Priority Lien Claimholders.
(a) Until the Discharge of First Lien ABL Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Collateral Trustee Trustee, each Priority Lien Representative and the Subordinated each Priority Lien ClaimholdersClaimholder:
(1i) will not exercise or seek to exercise exercise, directly or indirectly, any rights or remedies with respect to any ABL Collateral (including any Enforcement action or the exercise of any right of setoff or any right under any lockbox agreement, account control agreementAccount Agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee Trustee, any Priority Lien Representative or any Subordinated Priority Lien Claimholder is a party, in any case, solely to the extent that the exercise of any such right is with respect to any ABL Collateral) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, however, that the Collateral Trustee may exercise any or all of such rights or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which a Priority Lien Representative first declares the existence of a Priority Lien Debt Default and demands the repayment of all the principal amount of any Priority Lien Obligations; and (ii) the date on which the ABL Agent received written notice from the Collateral Trustee of such declarations of a Priority Lien Debt Default (the “Priority Lien Debt Standstill Period”); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall the Collateral Trustee, any Priority Lien Representative or any Priority Lien Claimholder exercise any rights or remedies (other than those under Section 3.3) with respect to the ABL Collateral if, notwithstanding the expiration of the Priority Lien Debt Standstill Period, (A) the ABL Agent or ABL Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of such ABL Collateral (prompt notice of such exercise to be given to the Collateral Trustee), or (B) an Insolvency or Liquidation Proceeding in respect of any Grantor has been commenced;
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral ABL Agent or any First Lien ABL Claimholder or any other exercise by the First Lien Collateral ABL Agent or any First Lien ABL Claimholder of any rights and remedies relating to the Collateral ABL Collateral, whether under the First Lien ABL Loan Documents or otherwise; and
(3iii) subject to their rights under clause (a)(1a)(i) aboveabove and except as may be permitted in Section 3.1(c), will not object to the forbearance by the First Lien Collateral ABL Agent or the First Lien ABL Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the CollateralEnforcement; provided, however, that, in each the case so long as of (i), (ii) and (iii) above, the Liens granted to secure the Subordinated Priority Lien Obligations of the Subordinated Lien Claimholders shall attach to any proceeds resulting from actions taken by the ABL Agent or any ABL Claimholder in accordance with this Agreement after application of such proceeds thereof subject to the relative priorities described in Section 2extent necessary to meet the requirements of a Discharge of ABL Obligations.
(b) Until the Discharge of First Lien ABL 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 ABL Agent and the First Lien ABL Claimholders shall have the exclusive right right, subject to Section 3.1(a), to enforce rights, exercise remedies (including Enforcement actions or the set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to in connection therewith (including voluntary Dispositions of ABL Collateral by the respective Grantors after an ABL Default) make determinations regarding the release, disposition, disposition or restrictions with respect to the ABL Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Trustee, any Priority Lien Representative or any Subordinated Priority Lien Claimholder; provided thatprovided, however, that the Lien securing the Subordinated Priority Lien Obligations shall remain on the proceeds (other than those properly applied to the ABL Obligations) of such Collateral released or disposed of of, subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the ABL Collateral, the First Lien Collateral ABL Agent and the First Lien ABL Claimholders may enforce the provisions of the First Lien applicable 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 reasonable discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of the ABL Collateral upon foreclosure, to incur reasonable expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee Trustee, any Priority Lien Representative and any Subordinated Priority Lien Claimholder (unless, as among the Priority Lien Claimholders, the Collateral Trust Agreement provides to the contrary) may:
(1i) file a claim or statement of interest with respect to the Subordinated Priority Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien ObligationsABL Collateral, or the rights of any First Lien Collateral the ABL Agent or the First Lien Claimholders any ABL Claimholder to exercise remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its Lien on any of the ABL Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Priority Lien Claimholders, including any claims secured by the ABL Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) file any pleadings, objections, motions or agreements which assert rights or interests that are 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;
(v) 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 Subordinated Priority Lien Obligations and the Collateral;
(vi) exercise any of its rights or remedies with respect to any of the ABL Collateral after the termination of the Priority Lien Debt Standstill Period to the extent permitted by Section 3.1(a)(i); and
(vii) make a cash bid on all or any portion of the ABL Collateral in any foreclosure proceeding or action. The Subordinated Collateral TrusteeTrustee and each Priority Lien Representative, on behalf of itself and each Subordinated and/or its respective Priority Lien ClaimholderClaimholders, agrees that it will not take or receive any ABL Collateral or any proceeds of such ABL Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any such ABL Collateral in its capacity as a creditor, unless and until the Discharge creditor in violation of First Lien Obligations has occurredthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien ABL Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b6.3(c)(i) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated any Priority Lien Claimholders Representative or any Priority Lien Claimholder with respect to the ABL Collateral is to hold a Lien (if any) on the such ABL Collateral pursuant to the Subordinated applicable Priority 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 First Lien ABL Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b6.3(c)(i):
(1i) the Subordinated Collateral TrusteeTrustee and each Priority Lien Representative, for itself and and/or on behalf of the Subordinated its respective Priority Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders it will not take any action that would hinder any exercise of remedies under the First Lien ABL Loan Documents or that is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the any ABL Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Collateral TrusteeTrustee and each Priority Lien Representative, for itself and and/or on behalf of the Subordinated its respective Priority Lien Claimholders, hereby waives any and all rights it or the Subordinated Collateral Trustee, such Priority Lien Claimholders Representatives and the respective Priority Lien Claimholders, as applicable, may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral ABL Agent or the First Lien ABL Claimholders seek to enforce or collect the First Lien ABL Obligations or the Liens securing the First Lien ABL Obligations granted in any of the First Lien Collateral ABL Loan Documents or undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral ABL Agent or First Lien ABL Claimholders is adverse to the interest interests of the Subordinated Priority Lien Claimholders; and
(3iii) the Subordinated Collateral Trustee and each Priority Lien Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Priority Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral ABL Agent or the First Lien ABL Claimholders with respect to the enforcement of the Liens on the ABL Collateral as set forth in this Agreement and the First Lien ABL Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)The Collateral Trustee, the Subordinated Collateral Trustee Priority Lien Representatives and the Subordinated Priority Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor grantor that has guaranteed or granted Liens to secure the Subordinated Priority Lien Obligations in accordance with the terms of the Subordinated Priority Lien Documents and applicable lawlaw so long as such rights and remedies do not violate or are not otherwise inconsistent with any express provision in this Agreement (including any provision prohibiting or restricting the Collateral Trustee, the Priority Lien Representative or Priority Lien Claimholders from taking various actions or making various objections); provided provided, however, that in the event that the Collateral Trustee, any Subordinated Priority Lien Representative or Priority Lien Claimholder becomes a judgment Lien creditor in respect of ABL Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated Priority Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien ABL Obligations) as the other Liens securing the Subordinated Priority Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Trustee, any Priority Lien Representative or any Subordinated Priority Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated its Priority Lien Obligations Obligations, so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee Trustee, such Priority Lien Representative or any Subordinated Priority Lien Claimholders Claimholder of rights or remedies as a secured creditor in respect of the ABL Collateral (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs shall be construed to impair or otherwise adversely affects affect any rights or remedies the First Lien Collateral ABL Agent or the First Lien ABL Claimholders may have with respect to against the First Lien CollateralGrantors under the ABL Loan Documents.
Appears in 1 contract
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the earlier of: (including i) following the occurrence of any action Event of foreclosureDefault under any Second Lien Loan Document, the date on which the First Lien Collateral Agent was given notice thereof in accordance with Section 8.9 and (ii) following the occurrence of the acceleration of the Second Lien Obligations, the date on which the First Lien Collateral Agent was given notice thereof in accordance with Section 8.9 (the “Standstill Period”); provided, further, that 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 so long as, notwithstanding the expiration of the Standstill Period, the First Lien Collateral Agent or First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action with respect to all or any material portion of the Collateral or the Company or any other Grantor is then, and then only for so long as it remains, a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding (with prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2) will not contest, protest protest, hinder, delay, or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; andotherwise (including any Enforcement Action initiated by or supported by the First Lien Collateral Agent or any First Lien Claimholder);
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as any proceeds received by the First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1 hereof and applicable law (to the extent such law is not inconsistent with the priority of distributions provided under Section 4.1 hereof);
(4) will not attempt to direct the First Lien Collateral Agent or the First Lien Claimholders to exercise any right, remedy or power with respect to the Collateral or exercise any consent to the exercise by the First Lien Collateral Agent or the First Lien Claimholders of any right, remedy or power with respect to the Collateral;
(5) will not institute any suit or assert in any suit, Insolvency or Liquidation Proceeding or other proceeding any claim against the First Lien Collateral Agent or the First Lien Claimholders seeking damages or other relief by way of specific performance, instructions or otherwise with respect to, and neither the First Lien Collateral Agent or the First Lien Claimholders will be liable for, any action taken or omitted to be taken by any of them with respect to the Collateral;
(6) will not take any action to cause or attempt to cause any Lien on the Collateral securing the Second Lien Obligations to be senior to or pari passu with the Liens granted securing the First Lien Obligations; and
(7) will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to secure challenge the Subordinated enforceability of any provision of this Agreement or the enforceability of any Lien Obligations securing the First Lien Obligations. The foregoing shall not be construed to prohibit the Second Lien Collateral Agent from enforcing the provisions of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2this Agreement.
(b) [Reserved].
(c) 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, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies commence and maintain an Enforcement Action (including set-off, recoupment and except that Second Lien Collateral Agent shall have the right to credit bid their debt) andrights set forth in Section 3.1(d)(7)), and subject to Section 5.1, to make determinations regarding the release, disposition, release or restrictions dispositions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that, that any proceeds received by the First Lien securing the Subordinated Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on are distributed to the proceeds of such Second Lien Collateral released or disposed of subject to Agent in accordance with the relative priorities described in Section 2herein. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with this Agreement and any applicable law and without consultation with the Second Lien Collateral Agent or any Second Lien Claimholder. Such exercise and enforcement shall include include, subject to compliance with applicable laws, the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cd) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1) vote, file a proofs of claim or statement and take any other action not in violation of interest the provisions of this Agreement with respect to the Subordinated Second Lien Obligations; provided that an Obligations in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, preserve or protect the validity, enforceability, perfection or priority (to the extent permitted by this Agreement) of its Lien on the CollateralCollateral and neither the First Lien Collateral Agent nor the other First Lien Claimholders will object to or contest, or otherwise support any other person in contesting or objecting to, any such action;
(3) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that are, in each case, not in accordance with violation of the terms of this Agreement, with respect to the Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Collateral Agent or any Second Lien Claimholder may seek, or otherwise support, any relief that would alter the lien priorities provided herein or otherwise be inconsistent with or seek to contravene the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); provided that in the event that the exercise any of rights or remedies are necessary at any time after the expiration of the Standstill Period, the First Lien Claimholders and the Second Lien Claimholders shall reasonably discuss the possibility of undertaking a coordinated enforcement process, provided that neither party shall be responsible for paying the other party’s costs in connection with any such enforcement and, unless the First Lien Claimholders and the Second Lien Claimholders otherwise agree in writing, such discussions shall not reinstate or otherwise extend the Standstill Period or constitute a forbearance or waiver of the Second Lien Claimholders’ ability to exercise rights or remedies after the termination of the Standstill Period;
(6) exercise any right or remedy permitted under Section 3.1(f);
(7) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations;
(8) take any action to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims;
(9) seek specific performance or other injunctive relief to compel the Company to comply with a non-payment obligation (including, without limitation, any Equity Rights) under any Second Lien Loan Document or other agreement or Equity Interest with respect to any Equity Rights;
(10) exercise any Equity Rights; and
(11) inspect or appraise the Collateral (and engage or retain investment bankers or appraisers for the sole purpose of appraising or valuing the Collateral) or receive information or reports concerning the Collateral. The Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of itself and each Subordinated other Second Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bpermitted by Section 3.1(a)(1) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and (to the extent granted therein the Second Lien Collateral Agent and Second Lien Claimholders are permitted to receive a share of retain the proceeds thereof, if any, after the Discharge thereof in accordance with Section 4.2 of First Lien Obligations has occurredthis Agreement).
(de) Subject to Sections 3.1(c3.1(a) and (d) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the CollateralCollateral by the First Lien Collateral Agent, whether by foreclosure or otherwise, absent gross negligence, willful misconduct, bad faith, self-dealing or fraud on the part of First Lien Collateral Agent or such First Lien Claimholder, as the case may be;
(2) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders, in each case absent gross negligence, willful misconduct, bad faith, self-dealing or fraud on the part of the First Lien Collateral Agent or such First Lien Claimholder, as the case may be; and
(3) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
(ef) Except As long as specifically set forth in Sections 3.1(a) such exercise is not contrary to the terms of this Agreement, and (d)whether or not any Insolvency or Liquidation Proceeding has been commenced, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(fg) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit or limit the payment to and the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing Except as may be expressly provided herein to the contrary for the exclusive benefit of the Second Lien Claimholders, 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.
(h) The First Lien Collateral Agent shall endeavor to deliver simultaneous written notice to the Second Lien Collateral Agent of the First Lien Collateral Agent commencing any Enforcement Action (“Enforcement Notice”).
Appears in 1 contract
Exercise of Remedies. (a) 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 Borrower or any other GrantorLoan Party, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien ClaimholdersSecured Parties will not:
(1i) will Exercise Any Secured Creditor Remedies with respect to any Collateral; provided, however, that if an Event of Default (as defined in the Second Lien Credit Agreement) has occurred, subject at all times to the provisions of Section 2.1 and Section 4, after expiration of a one hundred twenty (120) day period (the “Standstill Period”) which shall commence on the date of receipt by the First Lien Collateral Agent of a written notice from the Second Lien Agent of the occurrence of an Event of Default and its current intention to accelerate the Second Lien Obligations, the Second Lien Collateral Agent may Exercise Any Secured Creditor Remedies with respect to the Collateral, but only so long as (x) the Notice Period (as defined in Section 3.1(b) below) is not in effect or (y) the First Lien Collateral Agent is not diligently pursuing the exercise or seek to exercise any of its rights or remedies against, or diligently attempting to vacate any stay on enforcement of their Liens on, all or any material portion of the Collateral (which actions shall include, for the avoidance of doubt, diligent pursuit of an orderly sale or disposition of all or substantially all of the stock of the Borrower in a manner consistent with the sale of such assets in the marketplace);and provided, further, that in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Collateral Agent on their behalf) have commenced any actions to enforce their rights or exercise their remedies with respect to any Collateral (including the exercise of any right of setoff all or any right under any lockbox agreementmaterial portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which neither the Subordinated First Lien Secured Parties (nor the First Lien Collateral Trustee or any Subordinated Lien Claimholder is a partyAgent on their behalf) or institute shall take any action or proceeding of a similar nature with respect to such rights or remedies (including any action of foreclosure)Collateral;
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Secured Party of any rights and or remedies relating to the Collateral under the First Lien Documents or otherwiseCollateral; andor
(3iii) subject to their rights under clause (a)(1) above, will not object to the forbearance by the a First Lien Collateral Agent or the First Lien Claimholders Secured Party from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, provided, that the foregoing shall not limit the rights of the Second Lien Secured Parties under Section 3.1(a)(i) to assert that the Standstill Period has expired by reason of the failure of the First Lien Collateral Agent to diligently pursue the exercise of its rights or remedies against, or diligently attempt to vacate any stay on enforcement of their Liens on, all or any material portion of the Collateral; provided, however, that, in each the case so long as of clauses (i), (ii) and (iii) above, the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders Secured Parties shall attach to any Proceeds resulting from any such enforcement actions taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds thereof subject to the relative priorities described in Section 2extent necessary to meet the requirements of a Discharge of First Lien Obligations.
(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 Borrower or any other GrantorLoan Party, the First Lien Collateral Agent and the First Lien Claimholders shall Secured Parties shall, except as provided in Section 3.1(a)(i) above, have the exclusive right to enforce rights, rights and exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien ClaimholderSecured Party. The First Lien Secured Parties (or the First Lien Collateral Agent on their behalf) shall provide at least five days notice (the period from the time the first such notice is sent by the First Lien Secured Parties hereunder, the “Notice Period”) to the Second Lien Secured Parties (such notice, a “First Lien Enforcement Notice”) of their intent to exercise and enforce their rights or remedies with respect to the Collateral (and during such five day period, in the absence of Exigent Circumstances, such First Lien Secured Parties (or the First Lien Collateral Agent on their behalf) shall not exercise their rights and remedies with respect to the Collateral); provided that, if an Exigent Circumstance exists, the First Lien securing Secured Party (or the Subordinated First Lien Obligations Collateral Agent on their behalf) shall remain on provide such First Lien Enforcement Notice concurrently with or promptly after the proceeds exercise of such Collateral released or disposed of subject to the relative priorities described in Section 2rights and remedies. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee and Agent or any Subordinated other Second Lien Claimholder Secured Party may:
(1) file a proof of claim or statement of interest with respect to the Subordinated their respective Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding proceeding has been commenced by or against the Company Borrower or any other GrantorLoan Party;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the exclusive rights of any First Lien Collateral Agent or the First Lien Claimholders Secured Parties to exercise remedies in respect thereof) ), including filing any proof of claim or other filing or making any argument or motion, in order to create, perfect, preserve or protect its the Second Lien Obligations and the Liens on the CollateralCollateral held by the Second Lien Collateral Agent;
(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 Subordinated Second Lien ClaimholdersSecured Parties, including without limitation any claims secured by the Collateral, ;
(i) present a cash bid for Collateral or purchase Collateral for cash at any Section 363 hearing or at any public or judicial foreclosure sale and (ii) credit bid for Collateral pursuant to Section 363(k) of the Bankruptcy Code (provided that such credit bid may only be made if any, the Discharge of First Lien Obligations has occurred or will occur concurrently as a result of a cash bid for such Collateral in each case in accordance addition to such credit bid);
(5) exercise any of its rights or remedies with respect to the terms of this AgreementCollateral to the extent permitted by Section 3.1(a); and
(46) in any Insolvency or Liquidation Proceeding, vote on on, file and prosecute, object to, and make other filings with regard to, 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 to the extent consistent with the terms of this Agreementprovisions hereof, with respect to provided, however, that the Subordinated Second Lien Obligations Lenders and the CollateralSecond Lien Collateral Agent will not propose any plan of reorganization or liquidation that would result in the First Lien Lenders and the First Lien Collateral Agent receiving less than payment in full in cash of all obligations owing under the First Lien Loan Documents. The Subordinated Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge creditor in violation of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredAgreement.
(d) Subject to Sections 3.1(c3.1(a) and (c), Sections 5.1(a) and (b), and Section 6.3(b):6:
(1i) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or that is otherwise prohibited permitted hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated Second Lien Claimholders Secured Parties may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral Security Documents undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or the First Lien Claimholders Secured Parties is adverse to the interest interests of the Subordinated Second Lien ClaimholdersSecured Parties; and
(3iii) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Lien Security Document to which it is a party (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as otherwise specifically set forth in Sections 3.1(a) and (d), the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties may exercise rights and remedies as unsecured creditors against (including, without limitation, filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Company Borrower or any other Grantor Loan Party arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law) against the Borrower or any other Loan Party that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law, including, without limitation, the right to file an involuntary proceeding under the Bankruptcy Code; provided that in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the payment by the Loan Parties or the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Secured Party of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such payment is not made with the Proceeds from the sale, lease, or other disposition of any Collateral (except as permitted the First Lien Loan Documents), or such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Secured Party of rights or remedies as a secured creditor (including set-off and recoupmentoff) 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 Collateral.
(g) The parties hereto acknowledge and agree that (i) the First Lien CollateralCollateral Agent shall have no obligation to take, or refrain from taking, any of the actions set forth in this Section 3.1 other than in accordance with Section 9.1 of the First Lien Security Agreement and (ii) the Second Lien Collateral Agent shall have no obligation to take, or refrain from taking, any of the actions set forth in this Section 3.1 other than in accordance with Section 9.1 of the Second Lien Security Agreement.
Appears in 1 contract
Exercise of Remedies. (a) Until the Discharge If a Material Adverse Change 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies U.S. Law shall have occurred with respect to any Collateral (including the exercise an Affected Subsidiary, and such Material Adverse Change of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement U.S. Law shall continue to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding be in effect with respect to such rights or Affected Subsidiary for a period of six (6) months after such occurrence, then, subject to Sections 4.1(c) and 4.1(d) and only upon approval of the Board of Directors and following notice to and, if and to the extent required under European Exchange Regulations applicable at the time, approval by the applicable European Regulators, the Foundation may exercise any of the following remedies (including any action of foreclosure)each a “Six-Month Remedy”):
(i) deliver confidential or public and non-binding or binding advice or a recommendation to NYSE Euronext or Euronext with respect to such Affected Subsidiary relating to the Assumed Matters;
(2ii) will not contest, protest assume management responsibilities of Euronext or object the Affected Subsidiary solely with respect to any foreclosure proceeding some or action brought by all of the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseAssumed Matters; and
(3iii) subject to their rights under exercise the call option over Priority Shares, as set forth in clause (a)(1i) above, will not object to of Section 4.2(a) (the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2“Priority Share Call Option Remedy”).
(b) Until the Discharge If a Material Adverse Change 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 First Lien Claimholders U.S. Law shall have occurred with respect to an Affected Subsidiary, and such Material Adverse Change of U.S. Law shall continue to be in effect with respect to such Affected Subsidiary for a period of nine (9) months after such occurrence (the exclusive right to enforce rights“Resolution Period”), exercise remedies (including set-off, recoupment and the right to credit bid their debt) andthen, subject to Section 5.1Sections 4.1(c) and 4.1(d) and only upon approval of the Board of Directors and following notice to and, to make determinations regarding the release, disposition, or restrictions with respect if and to the Collateral without any consultation with or extent required under European Exchange Regulations applicable at the consent of time, approval by the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided thatapplicable European Regulators, the Lien securing Foundation may exercise the Subordinated Lien Obligations shall remain on the proceeds call option over Ordinary Shares, as set forth in clause (ii) of Section 4.2(b) (such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateralremedy, the First Lien Collateral Agent “Ordinary Share Call Option Remedy” and together with the First Lien Claimholders may enforce Priority Share Call Option Remedy, the provisions of “Call Option Remedies” and together with the First Lien Documents and exercise remedies thereunderSix-Month Remedies, 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction“Remedies”).
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect anything to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 contrary 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 the Foundation shall have the right to the Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period Remedy only if and to the extent granted therein that such Remedy (i) causes all Affected Subsidiaries to cease to be subject to a Material Adverse Change of U.S. Law; and to receive a share (ii) is the Remedy available that causes the least intrusion on the conduct of the proceeds thereofbusiness and operations of NYSE Euronext, if anyEuronext, after the Discharge Affected Subsidiaries and their respective Subsidiaries by their respective governing bodies. In determining whether a Remedy satisfies the conditions set forth in clause (ii) of First Lien Obligations has occurredthe immediately preceding sentence:
A. negative control by the Foundation over the business and operations of NYSE Euronext, Euronext, the Affected Subsidiaries and their respective Subsidiaries shall be preferred over affirmative control by the Foundation;
B. authority of the Foundation shall be asserted over the fewest and most narrow decisions of NYSE Euronext, Euronext, the Affected Subsidiaries and their respective Subsidiaries;
C. a Remedy covering fewer entities and subsidiary entities (such as an Affected Subsidiary) shall be preferred over a Remedy covering more entities and parent entities (such as Euronext);
D. the Priority Share Call Option Remedy shall be viewed as a Remedy of last resort among the Six-Month Remedies; and
E. the Ordinary Share Call Option Remedy shall be viewed as a Remedy of last resort among all Remedies.
(d) Subject Prior to Sections 3.1(c) and Section 6.3(b):the exercise of any Remedy, the Board of Directors must first:
(1i) consult with the Subordinated Collateral TrusteeBoard of Directors of NYSE Euronext, for itself and on behalf the Board of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee Directors of Euronext and the Subordinated Lien Claimholders will not take College of European Regulators and any action that would hinder any other relevant European Regulators during the Resolution Period to consider alternatives to the exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateralsuch Remedy, whether as suggested by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken foregoing or otherwise, to address or mitigate the effects of any Material Adverse Change of U.S. Law, taking into account any possible adverse consequences for NYSE Euronext or Euronext in accordance with this Agreementterms of taxation or accounting treatment, regardless acting in each case in the best interests of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien ClaimholdersNYSE Euronext; and
(3ii) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenantafter such consultation, agreement or restriction contained notify in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect writing to the Collateral as Board of Directors of NYSE Euronext and the Managing Board and the Supervisory Board of Euronext that the Board of Directors has determined in its reasonable opinion that such Remedy satisfies the conditions set forth in this Agreement and the First Lien DocumentsSection 4.1(c).
(e) Except Any determination as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that to whether there has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms been a Material Adverse Change of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor U.S. Law with respect to the Subordinated Lien Obligations, an Affected Subsidiary and whether such judgment Lien Material Adverse Change of U.S. Law is continuing shall be subject made by the Board of Directors. The Board of Directors shall be entitled to change its determination as to whether a Material Adverse Change of U.S. Law shall have occurred and/or is continuing, and in no event shall the terms of this Agreement for all purposes (including in relation Foundation be obligated to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreementexercise any Remedy.
(f) Except as specifically Without limitation to the standards set forth in Sections 3.1(asection 4.1(c) and above, the exercise of one or more Remedies at any point in time shall not limit the right of the Foundation to exercise further Remedies at one or more later times.
(d), nothing g) Nothing in this Agreement shall prohibit the receipt by European Regulators from bringing such matters to the Subordinated Collateral Trustee or any Subordinated Lien Claimholders attention of the required payments Board of interest, principal and other amounts owed in respect Directors as the European Regulators deem relevant or from providing advice to the Board of Directors at any time before or after the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result occurrence of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders a Material Adverse Change of rights or remedies as a secured creditor U.S. Law.
(including set-off and recoupmenth) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs shall (i) limit the ability of the Board of Directors to provide confidential non-binding advice to NYSE Euronext at any time before the end of the Resolution Period or otherwise adversely affects (ii) prevent NYSE Euronext, in its sole discretion, from implementing any rights or remedies remedy at any time before the First Lien Collateral Agent or end of the First Lien Claimholders may have with respect to the First Lien CollateralResolution Period.
Appears in 1 contract
Exercise of Remedies. (a) Until the Discharge Payment in Full of First Lien Obligations T▇▇▇▇▇▇ Debt has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Parent or any other Grantorof its Subsidiaries, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
no Loan Document Claimholder will (1a) will not exercise or seek to exercise any rights or remedies (including any secured creditor remedies) with respect to any Collateral the Collateral, or (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a partyb) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest protest, or object to any foreclosure proceeding exercise of rights or action brought by remedies or forbearance from the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation by T▇▇▇▇▇▇; provided, that if a Loan Document Default has occurred and is continuing, Agent may exercise rights and remedies (including secured creditor remedies) with or respect to the consent Collateral after the expiration of the Subordinated Collateral Trustee applicable Standstill Period (provided that in no event shall Agent or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released other Loan Document Claimholder exercise any rights or disposed of subject remedies with respect to the relative priorities described Collateral if, notwithstanding the expiration of the applicable Standstill Period, T▇▇▇▇▇▇ shall have commenced prior to the expiration of the applicable Standstill Period (or thereafter but prior to the commencement of any exercise of rights or remedies by Agent with respect to all or any material portion of the Collateral) and is diligently pursuing in Section 2good faith any rights or remedies with respect to all or any material portion of the Collateral). In exercising connection with any exercise of rights and or remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders T▇▇▇▇▇▇ may enforce the provisions of the First Lien T▇▇▇▇▇▇ Documents and exercise remedies thereunder, all in such order and in such manner as they he may determine in the exercise of their his sole discretion. Such exercise and enforcement shall include The foregoing to the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoingcontrary notwithstanding, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
Loan Document Claimholders may (1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2i) take any action (not adverse to the priority status of the Liens on in the Collateral securing the First Lien ObligationsT▇▇▇▇▇▇ Debt, or the rights of any First Lien Collateral Agent or the First Lien Claimholders T▇▇▇▇▇▇ to exercise rights or remedies in with respect thereofto the Collateral) in order to create, perfect, preserve create or protect its Lien on perfect their Liens in and to the Collateral;
, (3ii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien Claimholdersany Loan Document Claimholder, including any claims secured by the Collateral, if any, in each case in accordance (iii) if an Insolvency Proceeding has been commenced by or against any Borrower or Guarantor, file a claim or statement of interest with respect to the terms of this Agreement; and
Loan Document Debt, (4iv) vote on any plan of reorganization, file any proof of claim, make other filings reorganization and make any arguments filings and motions that are, in each case, not in accordance with contravention of the terms provisions of this Agreement, with respect to the Subordinated Lien Obligations Loan Document Debt and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will or (v) join (but not take or receive exercise any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) control with respect to to) any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and initiated by T▇▇▇▇▇▇ to the extent granted therein and 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 T▇▇▇▇▇▇ (it being understood that no Loan Document Claimholder shall be entitled to receive a share any proceeds thereof unless otherwise expressly permitted herein). Furthermore, anything to the contrary contained herein notwithstanding and for the avoidance of the proceeds thereofdoubt, if any, after the Discharge of First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee Agent and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Loan Document Claimholders may have as a junior lien creditor or otherwise at any time and from time to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated Lien Claimholders may time exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 any assets of any Borrower or Guarantor other than the First Lien Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Nevada Gold & Casinos Inc)
Exercise of Remedies. (a) Until If the Discharge relevant Enforcement Action Notice was executed by the Required Creditors, then, if the Enforcement Event which is the subject of First Lien Obligations has occurredsuch Enforcement Action Notice remains outstanding, whether or not the Enforcement Action specified in such Enforcement Action Notice will be initiated by the relevant Collateral Agent without further action on behalf of any Secured Party in accordance with this Section 3.4 (Exercise of Remedies); provided, however, that, subject to Section 3.5 (Who May Exercise Remedies), (a) in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Collateral Trustee any Second Lien Secured Party may file a proof of claim or statement of interest, and the Subordinated Lien Claimholders:
(1) will not exercise make any arguments, motions or seek to exercise any rights or remedies other filings with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 CollateralObligations, in each case so long as not inconsistent with the Liens granted to secure the Subordinated Lien Obligations terms of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
this Agreement, (b) Until the Discharge of First any Second Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Agent or any other Grantor, the First Second Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders Secured Party may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Collateral securing the Second Lien Obligations so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the Collateral securing the First Lien Obligations, or the rights of any First Lien Collateral Agent Obligations or the First Lien Claimholders Secured Parties’ rights to exercise remedies, (c) any Second Lien Secured Party may exercise the rights and remedies provided for in respect thereofSection 10.4 (Adequate Protection), and (d) in order to create, perfect, preserve or protect its any Second Lien on the Collateral;
(3) Secured Party 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 Subordinated Second Lien ClaimholdersSecured Parties or the avoidance of any Lien on the Collateral securing the Second Lien Obligations, including any claims secured by to the Collateral, if any, in each case in accordance extent not inconsistent with the terms of this Agreement; and
(4) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions provided further that are, in each case, in accordance with the terms of this Agreement, with respect to the Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein and to receive a share any cash proceeds of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of are realized from actions taken by the First Lien Collateral undertaken in accordance with this AgreementAgent, regardless the Liens granted to secure the Second Lien Obligations shall attach to any such proceeds remaining after application of whether any action or failure such proceeds to act by or on behalf the extent necessary to effect a Discharge of the First Lien Obligations.
(b) After the expiration of a Standstill Period where a Required Creditor has the right to initiate an Enforcement Action, if the Collateral Agents (before a Collateral Agent has otherwise commenced an Enforcement Action) receive conflicting Enforcement Action Notices from the Administrative Agent and the Inventory Party, the Collateral Agents will refrain from taking any Enforcement Action that is the subject of such conflicting notices and call a meeting or First Lien Claimholders is adverse conference call with the other Secured Parties to the interest of the Subordinated Lien Claimholders; and
be held within five (35) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents Business Days thereafter (or any other Subordinated Lien Document time as agreed between the Secured Parties). The Secured Parties will, at the meeting or conference call, develop a plan for an Enforcement Action that is acceptable to the Administrative Agent and the Inventory Party. If the Administrative Agent and the Inventory Party fail to agree on the Enforcement Actions at the meeting or conference call, they will negotiate in good faith for a further period of ten (other than this Agreement10) shall be deemed to restrict days, failing which the instructions delivered by the ABL Loan Collateral Agent in any way the rights and remedies case of the First Lien ABL Loan Collateral and the Inventory Collateral Agent or in the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms case of the Subordinated Lien Documents and applicable law; provided Inventory Collateral that in the event that any Subordinated 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 Subordinated Lien Obligations, such judgment Lien shall be is subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this AgreementEnforcement Action will prevail.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until Prior to the Discharge Payment in Full of First Lien Obligations has occurredthe Senior Claims in respect of any Senior Collateral, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);Senior Collateral:
(2i) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment take or cause to be taken any Enforcement Action and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, Disposition (including under §363(f) of the Bankruptcy Code) or restrictions with respect to the such Senior Collateral without any consultation with with, or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided thatJunior Secured Party, the Lien securing the Subordinated Lien Obligations which rights shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateralinclude, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise remedies thereunderwithout limitation, 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 the Senior Secured Party to sell or otherwise dispose of Senior Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction; and
(ii) no Junior Secured Party shall (A) take or cause to be taken any Enforcement Action against any Senior Collateral, (B) object to any Enforcement Action brought by any Senior Secured Party or any other exercise of any rights and remedies relating to such Senior Collateral under the Senior Documents or otherwise, or (C) object to the forbearance by any of the Senior Secured Parties from bringing or pursuing any Enforcement Action; provided that if (x) a payment default exists with respect to the Junior Claims or (y) an Acceleration Event has occurred with respect to the Junior Documents of any holder of a Junior Lien, and subject at all times to the provisions of Sections 2.1 and 4, after a period of 150 days has elapsed during which such payment default shall not have been cured or such Acceleration Event shall not have been rescinded or waived in accordance with the applicable Junior Documents, as applicable (the “Standstill Period”), which Standstill Period shall commence on the date of receipt by the applicable Senior Secured Party of written notice from the applicable Junior Secured Party of the occurrence of such payment default or Acceleration Event, the Junior Secured Party may take Enforcement Action with respect to any Senior Collateral upon 5 Business Days’ prior written notice to the Senior Secured Party (which notice may be given prior to the completion of the Standstill Period), but only if the Senior Secured Party is not diligently pursuing an Enforcement Action with respect to all or any material portion of the Senior Collateral; provided, that (1) any Senior Collateral or any proceeds of Senior Collateral received by the Junior Secured Party in connection with the enforcement of such Lien shall be applied in accordance with Section 4 and (2) nothing in this Section 3.1(a)(ii) shall be construed to authorize the Junior Secured Party to sell any Senior Collateral free of the Lien of the Senior Secured Party.
(b) In exercising rights and remedies with respect to any Senior Collateral, the Senior Secured Party shall, except as otherwise expressly provided herein (including paragraph (a) above), have the exclusive right to enforce rights, exercise remedies (including set-off and the right to credit bid its debt) and make determinations regarding the release, Disposition, or restrictions with respect to the Senior Collateral; provided, that (x) to the extent a purchase notice pursuant to Section 7.4 has been delivered in accordance with such section and so long as no Exigent Circumstances exist, no ABL Secured Party shall commence or continue any Enforcement Action (other than collection of accounts receivable and other actions permitted under the ABL Documents when no Event of Default exists thereunder) without the consent of the Term Loan Secured Party and, further, the ABL Secured Party agrees to provide prompt notice (in reasonable detail) of such Exigent Circumstance to the Term Loan Secured Party and agrees to consult with the Term Loan Secured Party prior to the commencement of any Enforcement Action with respect to any Senior Collateral based on such Exigent Circumstances; provided that, the restriction on Enforcement Action by the ABL Secured Party under this clause (x) shall terminate if the purchase and sale contemplated in Section 7.4 shall not be closed in accordance with the provisions thereof.
(c) Notwithstanding the foregoinglimitations set forth in Section 3.1(a) above, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder each Junior Secured Party may:
(1i) file a claim or statement of interest with respect to the Subordinated Lien ObligationsJunior Claims; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company any Borrower or any other Grantor;
(2ii) take any action (not adverse to the priority status of the Senior Liens on the Senior Collateral securing the First Lien Obligationsany Senior Claims, or the rights of any First Lien Collateral Agent or the First Lien Claimholders Senior Secured Party of the highest Class to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Junior Lien on the Senior Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the its claims of the Subordinated Lien Claimholders, including any claims secured by the Senior Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) 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 not inconsistent with the terms of this Agreement, with respect to ;
(v) present a cash only bid at any Section 363 of the Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take Bankruptcy Code hearing or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral other Disposition of Senior Collateral; and
(vi) join in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting enforcement actions commenced by the generality applicable Senior Secured Parties in respect of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Senior Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein and to receive a share that such Senior Secured Party reasonably determines that by joining in such action such Junior Secured Party will not delay, interfere with or otherwise prejudice the rights of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurredapplicable Senior Secured Parties.
(dA) Subject to Sections 3.1(c3.1(a) and Section 6.3(b):
(1) the Subordinated Collateral Trusteeb), for itself and on behalf of the Subordinated Lien Claimholders, each Junior Secured Party agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders it will not take any action that would hinder any exercise of remedies by the Senior Secured Party under the First Lien Senior Documents or that is otherwise prohibited hereunder, including including, to the extent prohibited hereunder, any sale, lease, exchange, transfer or other disposition of the Senior Collateral, whether by foreclosure or otherwise;.
(2vii) To the Subordinated Collateral Trustee, for itself and on behalf extent that the Senior Secured Party acts in accordance with the terms of the Subordinated Lien ClaimholdersSenior Documents and applicable law, each Junior Secured Party hereby (A) waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek Senior Secured Party seeks to enforce or collect the First Lien Obligations its Senior Claims or the Senior Liens securing the First Lien Obligations its Senior Claims granted in any of the First Lien Collateral undertaken in accordance Senior Documents and (B) consents to all such actions, including, without limitation, the exclusive right of such Senior Secured Parties to credit bid with this Agreement, regardless respect to any disposition solely of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholdersits Senior Collateral; and
(3viii) the Subordinated Collateral Trustee Each Junior Secured Party hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Junior Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Party with respect to the Senior Collateral as set forth in this Agreement and the First Lien Senior Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 (Blyth Inc)
Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 120 days has elapsed since the date the First Lien Representatives received notice from such Designated Second Lien Representative that such Designated Second Lien Representative has declared the existence of any Event of Default under (including and as defined in) any Second Lien Loan Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Claimholder take any Enforcement Action with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, (i) any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative) or (ii) any Grantor shall be subject to any Insolvency or Liquidation Proceeding (provided that in any such Insolvency or Liquidation Proceeding any Second Lien Representative, Second Lien Collateral Agent or Second Lien Claimholder may take any action of foreclosureexpressly permitted by Section 6 hereof);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwiseother applicable law; and
(3) subject to their rights under clause (a)(1Section 3.1(a)(1) above, will not object to the forbearance by the any First Lien Representative, any 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 Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the exclusive right to commence and maintain any Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Representatives shall have the rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholder; provided thatthat any proceeds received by any First Lien Representative, the any First Lien securing the Subordinated Collateral Agent or any First Lien Claimholder in excess of those necessary to achieve a Discharge of First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. Nothing contained in this Agreement shall be deemed to be a consent by (or waiver of any claim in respect of) (x) any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Claimholder to any disposition of Collateral or any Enforcement Action by any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder other than in a commercially reasonable manner or (y) any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder to any disposition of Collateral or any Enforcement Action by any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Claimholder other than in a commercially reasonable manner.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder, may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient, and used, to cause the Discharge of First Lien Obligations on the closing of such credit bid transaction. The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Second Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), ) and 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a) and 3.1(c) and Section 6.3(b):
(1) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders represented by it will not take any action with respect to the Collateral that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) subject to the Subordinated last sentence of Section 3.1(b), each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Second Lien Representative or the Subordinated such Second Lien Collateral Agent and such Second Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated each Second Lien Representative and each Second Lien Collateral Trustee Agent, for itself and on behalf of each other Second Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Second Lien Collateral Documents or any other Subordinated Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)The Second Lien Representatives, the Subordinated Second Lien Collateral Trustee Agents and the Subordinated other 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement (including Section 6 hereof) for all purposes (including in relation to the First Lien Obligations) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d3.1(d), nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
(g) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Claimholders, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Claimholders with respect to the Collateral as set forth in this Agreement.
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Obligations has occurredhave not been paid in full (as hereinafter defined), whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Borrower or any other Grantorof its Subsidiaries, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) will not no Junior Secured Creditor shall (A) exercise or seek to exercise any rights or remedies with respect to any Collateral securing the Second Lien Obligations, (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a partyB) or institute any action or proceeding with respect to such rights or remedies (including including, without limitation, any action of foreclosure);
, contest or protest) or (2C) will not contest, protest or object to any foreclosure proceeding or action brought by any Senior Secured Creditor or the First Lien Collateral Agent exercise of any right under any Senior Loan Document or similar agreement or arrangement to which any First Lien Claimholder Senior Secured Creditor is a party, or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder such party of any rights and remedies relating to the Collateral under the First Lien Senior Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not or, except as provided herein, any release of any or all of the Collateral for any purpose, or object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Creditors from bringing or pursuing any foreclosure proceeding proceeding, or object, oppose or otherwise contest any claim for allowance in any Insolvency Proceeding of First Lien Obligations consisting of post-petition interest, fees and expenses or action or any other exercise of any rights or remedies relating to the Collateral; provided that any Junior Secured Creditor may exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the date on which the Senior Agent has been notified in writing by one or more Junior Secured Creditors that the aggregate amount due and payable by the Borrower in respect of Commodity Hedge Agreements constituting Second Lien Obligations that have been terminated is in excess of $100,000,000 (the “Standstill Period”); provided further that notwithstanding anything to the contrary herein, in each case so long as no event shall any Junior Secured Creditor exercise any rights or remedies with respect to the Liens granted to secure Collateral if, notwithstanding the Subordinated Lien Obligations expiration of the Subordinated Lien Claimholders attach Standstill Period, the Senior Agent or the Senior Secured Creditors shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the proceeds thereof Junior Secured Creditors); and (ii) subject to the relative priorities described in Section 2.
rights of the Junior Secured Creditors under clause (bi) 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 Grantorabove, the First Lien Collateral Agent and the First Lien Claimholders Senior Secured Creditors shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Junior Secured Creditors, and the Junior Secured Creditors shall take any action reasonably requested by the Senior Agent in order to effectuate any such enforcement, exercise, release or any Subordinated Lien Claimholderdisposition; provided that, however that (w) the Lien securing Junior Secured Creditors may exercise any rights or remedies after the Subordinated Lien Obligations shall remain on termination of the proceeds of such Collateral released or disposed of subject Standstill Period to the relative priorities described extent permitted by Section 6(a)(i), (x) in Section 2. In exercising rights and remedies with respect to any Insolvency Proceeding commenced by or against the CollateralBorrower, the First Lien Collateral Agent and the First Lien Claimholders any Junior Secured Creditor may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest interest, (y) any Junior Secured Creditor may take any action not adverse to the Senior Secured Creditors in order to preserve or protect its rights in the Collateral and any Junior Secured Creditor may act in coordination with and not adverse to the Senior Secured Creditors in exercising any remedies initiated by the Senior Secured Creditors with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;Collateral.
(2b) 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions Each Junior Secured Creditor agrees that are, in each case, in accordance with the terms of this Agreementit shall not, with respect to the Subordinated Second Lien Obligations and the Collateral. The Subordinated Collateral TrusteeObligations, take or receive from or on behalf of itself and each Subordinated Lien Claimholderthe Borrower or any Subsidiary of the Borrower, agrees that it will not take directly or receive 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 Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditorCollateral, unless and until the Discharge of all First Lien Obligations has occurredhave been paid in full. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurredhave been paid in full, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c)herein, the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders Junior Secured Creditors with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Junior Hedge 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 of First Lien Obligations has occurred.
(d) Subject Obligations; provided however that subject to Sections 3.1(c) Section 5 and this Section 6.3(b):
(1) 6, nothing in this paragraph shall be construed to impair the Subordinated Collateral Trustee, for itself and on behalf right of the Subordinated Junior Secured Creditors to receive payments of principal, interest, fees and other amounts in respect of the Second Lien ClaimholdersObligations as provided for in the Junior Hedge Documents, and to enforce the making of such payments by bringing suit at law (but not, except as provided in Section 6(a)(i) above, to exercise any rights in respect of their Liens on the Collateral) with respect to any unpaid amounts of such payments. Each Junior Secured Creditor (i) further agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders it will not take any action that would hinder hinder, delay, limit, impede or prohibit any exercise of remedies under by the Senior Agent or any of the Senior Secured Creditors to the extent related to satisfying the First Lien Documents or is otherwise prohibited hereunderObligations, including any collection, sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) , or that would limit, invalidate, avoid or set aside any Lien or Senior Loan Document securing or purporting to secure the Subordinated Collateral Trustee, for itself and on behalf First Lien Obligations or subordinate the priority of the Subordinated First Lien Claimholders, 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) hereby waives any and all rights it or the Subordinated Lien Claimholders 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 First Lien Collateral Agent or the First Lien Claimholders Senior Secured Creditors seek to enforce or collect the First Lien Obligations or the Liens securing now or hereafter granted in any Collateral to secure the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementObligations, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders Senior Secured Creditors is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsJunior Secured Creditors.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until the Discharge date on which all the Senior Secured Claims shall have been paid in full, the Senior Representative, in its sole discretion and to the exclusion of First Lien Obligations has occurredthe Subordinated Representatives, shall have, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against default under the Company or Indenture shall have occurred and be continuing and both before and after the commencement of any other Grantorproceeding referred to in Section 9.07(a), the Subordinated Collateral Trustee sole and exclusive right (as between the Senior Representative, on the one hand, and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreementRepresentatives, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject other) to direct the relative priorities described in Section 2. In exercising rights and remedies Security Trustee to take all action with respect to the Collateral, including the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions right to exercise or direct voting or other consensual rights, to foreclose or forebear from foreclosure in respect of the First Lien Documents Collateral and exercise remedies thereunderto accept the Collateral in full or partial satisfaction of any Senior Secured Claim, 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeRepresentatives agree that, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided Senior Secured Claims have been paid in Sections 3.1(a), 6.3(b) and this Section 3.1(c)full, the sole only right of the Subordinated Collateral Trustee and Secured Claimants under this Agreement is for the Subordinated Lien Claimholders with respect Secured Claims to be secured by the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein provided for herein or in the Indenture and to receive a share of the proceeds thereofof the Collateral, if any, after subject to payment priorities set forth in Article III of the Discharge of First Lien Obligations has occurredIndenture.
(db) Subject The Subordinated Representatives agree that, so long as any of the Senior Secured Claims shall remain unpaid, they and the Subordinated Secured Claimants will not commence, or join with any creditor other than the Security Trustee and the Senior Secured Claimants in commencing, any enforcement, collection, execution, levy or foreclosure proceeding with respect to Sections 3.1(c) the Collateral or proceeds of Collateral. Upon request by the Senior Representative, the Subordinated Representatives and Section 6.3(b):the Subordinated Secured Claimants will, at the expense of the Issuer, join in enforcement, collection, execution, levy or foreclosure proceedings and otherwise cooperate fully in the maintenance of such proceedings by the Security Trustee, including by executing and delivering all such consents, pleadings, releases and other documents and instruments as the Security Trustee may reasonably request in connection therewith, it being understood that the conduct of such proceedings shall at all times be under the exclusive control of the Security Trustee acting upon the directions of the Senior Representative.
(1c) The Subordinated Representatives agree, upon written request by the Subordinated Collateral TrusteeSenior Representative, for itself to release the liens and on behalf security interests in favor of the Subordinated Lien Claimholders[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. Confidential Treatment Requested: Information for which confidential treatment has been requested is omitted and is noted with asterisks. An unredacted version of this document has been filed separately with the Securities and Exchange Commission. Secured Claimants in any Collateral and to execute and deliver all such directions, agrees that consents, pleadings, releases and other documents and instruments as the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderSenior Representative may reasonably request in connection therewith, including upon any sale, lease, exchange, transfer or other disposition of the Collateralsuch Collateral or part thereof in accordance with, whether by foreclosure or otherwise;for application of proceeds pursuant to, Section 9.05(a).
(2d) the The Subordinated Collateral TrusteeRepresentatives agree that neither they nor any Subordinated Secured Claimants will contest, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor bring (or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether join in) any action or failure proceeding for the purpose of contesting, the validity, perfection or priority of, or seeking to act by or on behalf avoid, the rights of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Claimants in or with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Security Trust Agreement (Willis Lease Finance Corp)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company or any other GrantorObligors, each of the Subordinated Second Lien Collateral Trustee Agents, for itself and the Subordinated on behalf of its Related Second Lien Claimholders, hereby agrees that it and its Related Second Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies (including setoff) with respect to any Collateral (including the exercise of or institute or commence, or join with any right of setoff Person in instituting or commencing, any other Enforcement Action or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any other 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); provided that the Directing Second Lien Collateral Agent or any Person authorized by it may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days since the Directing First Lien Collateral Agent shall have received notice from the Directing Second Lien Collateral Agent with respect to the acceleration by the relevant Second Lien Claimholders of the maturity of all then outstanding Second Lien Obligations (and requesting that Enforcement Action be taken with respect to the Collateral) so long as the applicable “event of default” shall not have been cured or waived (or the applicable acceleration rescinded) (the “Standstill Period”); provided further that notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agents or any other Second Lien Claimholders exercise any rights or remedies with respect to any Collateral or institute or commence, or join with any Person in instituting or commencing, any other Enforcement Action or any other action or proceeding with respect to such rights or remedies, if, notwithstanding the expiration of the Standstill Period, either (A) the Directing First Lien Collateral Agent or any other First Lien Claimholder shall have commenced and be diligently pursuing (or shall have sought or requested and be diligently pursuing relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and the pursuit of) an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (with any determination of which Collateral to proceed against, and in what order, to be made by the Directing First Lien Collateral Agent or such First Lien Claimholders in their reasonable judgment) or (B) any of the Obligors is then a debtor in any Insolvency or Liquidation Proceeding;
(2) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the Directing First Lien Collateral Agent or any other First Lien Claimholder or any other exercise by the Directing First Lien Collateral Agent or any other First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and;
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the Directing First Lien Collateral Agent or the other First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action Enforcement Action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted to secure the Subordinated Directing First Lien Obligations of the Subordinated Collateral Agents or other First Lien Claimholders attach in excess of those necessary to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the achieve a 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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case are distributed in accordance with the terms of this AgreementSection 4.1; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral Collateral, or any proceeds of Collateral or payment with respect to any Collateral, in connection with the any Enforcement Action or any other exercise of any right or remedy with respect to any Collateral or any Insolvency or Liquidation Proceeding in its capacity as a creditor or in connection with any insurance policy award or any award in a condemnation or similar proceeding (including set-off and recoupmentor deed in lieu of condemnation) with respect to any Collateral Collateral, in its capacity as a creditor, each case unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Collateral Agent and its Related Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.1. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a3.1(a)(1), 6.3(b3.1(c) and this Section 3.1(c6.3(b), the sole right of the Subordinated each Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders with respect to the Collateral (other than inspection, monitoring, reporting and similar rights provided for in the Second Lien Financing Documents) is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any First Lien Obligor, subject to Sections 3.1(a)(1), 3.1(c) and 6.3(b), the First Lien Collateral Agents and the other First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise exercise any rights and remedies (including set-off, recoupment and the right to “credit bid” their debt, except that the Second Lien Collateral Agents shall have the “credit bid” rights set forth in Section 3.1(c)(6)), and make determinations regarding the release, Disposition, or restrictions with respect to the Collateral, in each case without any consultation with or the consent of any Second Lien Collateral Agent or any other Second Lien Claimholder; provided that any proceeds received by any First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agents and the other First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise Dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or other Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, each Second Lien Collateral Agent and any other Second Lien Claimholder may:
(1) file a claim, proof of 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 any of the Second Lien Obligors by a Person other than a Second Lien Claimholder;
(2) take any action in order to create, perfect, preserve or protect (but not enforce) its Lien on the Collateral to the extent (A) 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 other First Lien Claimholders to exercise rights and remedies in respect thereof, and (B) not otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 5.1;
(3) 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 of the Second Lien Claimholders, including any claims or Liens secured by the Collateral, if any, in each case to the extent not inconsistent with the terms of this Agreement;
(4) vote on any plan of reorganization or similar dispositive restructuring plan, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions with respect to the Second Lien Obligations and the Collateral that are, in each case, in accordance with the terms of this Agreement, including Section 6.9(c); provided that no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization or similar dispositive restructuring plan, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Collateral Agent or any other Second Lien Claimholder may be inconsistent with the terms of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the Directing First Lien Collateral Agent or any other First Lien Claimholder, or any sale of any Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
(d) Subject to Sections 3.1(a)(1), 3.1(c) and Section 6.3(b):
(1) the Subordinated each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated its Related Second Lien Claimholders, :
(1) agrees that the Subordinated Collateral Trustee it and the Subordinated its Related Second Lien Claimholders will not take any action that would hinder hinder, delay, limit or prohibit any exercise of rights or remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer collection or other disposition Disposition of the any Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien securing any First Lien Obligations or any First Lien 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;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated its Related Second Lien Claimholders may have as a junior lien Lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the First Lien Collateral Agent Agents or the other First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementObligations, regardless of whether any action or failure to act by or on behalf of the any First Lien Collateral Agent or any other First Lien Claimholders is adverse to the interest of the Subordinated any Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Collateral Agent or the other First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated The Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Obligors that has have guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Initial Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Obligor, prior to the termination of the Standstill Period or as otherwise prohibited pursuant to the second proviso in Section 3.1(a)(1)); provided that (i) any such exercise shall not be directly or indirectly inconsistent with or prohibited by the terms of this Agreement (including Section 6 and any provision prohibiting or restricting the Second Lien Claimholders from taking various actions or making various objections) and (ii) in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing . Nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Claimholder of the required payments of principal, premium, interest, principal fees and other amounts owed in respect of due under the Subordinated Initial Second Lien Obligations Documents so long as such receipt is not the direct or indirect result of the exercise by the Subordinated a Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (in respect of Collateral, including set-off and recoupment) or enforcement in contravention any right 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 Collateralsetoff.
Appears in 1 contract
Sources: Credit Agreement (Nuvei Corp)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Obligations Priority Claims 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) the Senior Agent and the First Priority Lenders shall have the exclusive right to enforce rights and exercise remedies (including set-off and the right to credit bid their debt) in respect of and make determinations regarding the release of the First Priority Claims, First Priority Liens and the disposition of the First Priority Collateral and any Common Collateral to the extent provided in Section 5.1 of this Agreement without any consultation with or the consent of the Second Lien Agent or any Second Priority Lender; provided that, (A) the Second Lien Agent and the Second Priority Lenders may exercise or seek to exercise any rights or remedies (including set off) with respect to the Second Priority Claims, the Subordinated Second Priority Collateral Trustee or any Common Collateral after a period of at least one hundred eighty (180) days has elapsed since the date on which the Second Lien Agent receives an Enforcement Notice from the Senior Agent (the “Second Priority Standstill Period”), (B) any such exercise of rights and remedies by the Subordinated Second Lien Claimholders:
Agent or any Second Priority Lender is at all times subject to the provisions of this Agreement, and (C) that the Second Lien Agent and each of the Second Priority Lenders shall not exercise any such rights and remedies (1) at any time that the Senior Agent or the First Priority Lenders have commenced and are diligently pursuing in good faith an exercise of rights and remedies against all or substantially all of the First Priority Collateral or Common Collateral, (2) at any time that any Loan Party or Obligor is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding, or (3) if the First Priority Default under the Loan Agreement giving rise to such exercise of rights and remedies is waived in accordance with the terms of the Loan Agreement prior to the commencement of such exercise of remedies by the Second Lien Agent and/or the Second Priority Lenders; provided, further that, after the expiration of the applicable Second Priority Standstill Period and after the Second Lien Agent has provided prior written notice to the Senior Agent (which may occur during the Second Priority Standstill Period) that it intends to commence such exercise of remedies with respect to any Collateral, and the Senior Agent has not commenced any action to enforce its rights or remedies on the Collateral during the Second Priority Standstill Period in accordance with subclause (1) above, neither the Senior Agent nor any First Priority Lender shall take any action of a similar nature with respect to the Collateral to the extent that all other provisions of this Agreement are complied with, but the Senior Agent may join in any enforcement action commenced by the Second Lien Agent. Notwithstanding anything to the contrary, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower, the Company, or any Grantor, the Second Lien Agent or the requisite Second Priority Lenders may file a claim or statement of interest with respect to the Second Priority Claims; (B) the Second Lien Agent or the requisite Second Priority Lenders may take any action (not adverse to the prior Liens on the Common Collateral securing the First Priority Claims, or the rights of the Senior Agent or the First Priority Lenders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Common Collateral; (C) the Second Lien Agent or the Second Priority Lenders 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 Second Priority Lenders, including any claims secured by the Common Collateral, if any; (D) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower, the Company, or any Grantor, the Second Lien Agent or the requisite Second Priority Lenders may vote on any plan of reorganization, file any proof of claim and make any other filings, arguments and motions that are not inconsistent with the terms of this Agreement; (E) the Second Lien Agent or the Second Priority Lenders may join (but not exercise any control with respect to) any judicial foreclosure proceeding or other enforcement proceeding with respect to the Common Collateral initiated by the Senior Agent to the extent that any such action could not reasonably be expected, in any material respect (as determined in the reasonable discretion of the Senior Agent), to restrain, hinder, limit, delay for any material period or otherwise interfere with the exercise of remedies by the Senior Agent (it being understood that no Second Lien Lender shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein); (F) the Second Lien Agent or the Second Priority Lenders may enforce the terms of any subordination agreement with respect to any indebtedness or other obligation subordinated to the Second Priority Obligations; (G) the Second Lien Agent or the Second Priority Lenders may 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 a Grantor; and (H) the Second Lien Agent or the Second Priority Lenders may make a cash bid on all or any portion of the Collateral in any foreclosure proceeding or action.
(ii) except as otherwise provided in (i) above, the Second Lien Agent and the Second Priority Lenders will not exercise or seek to exercise any rights or remedies (including set off) with respect to any Collateral (including the exercise of any right of setoff Second Priority Claims or any right under any lockbox agreementCommon Collateral, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosureforeclosure or any action or petition to lift or vacate any stay of proceedings);
(2) will not , contest, protest or object to any foreclosure proceeding or other Lien enforcement action brought by the First Lien Collateral Senior Agent or any First Priority Lender, the exercise of any right under any lockbox agreement, control agreement, blocked account agreement, landlord waiver or bailee’s letter or similar collateral agreement or arrangement to which the Second Lien Claimholder Agent or any Second Priority Lender is a party, or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder such Person, of any rights and remedies relating to the First Priority Claims or the Common Collateral under the First Lien Priority Documents or otherwise; and
(3) subject applicable law relating to their the rights under clause (a)(1) aboveof the holder of such Obligation or such Lien, will not or object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Priority Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating thereto; provided that, (A) the exercise by the Second Priority Lenders of their option to convert their Notes into Conversion Shares (at a fixed conversion price determined in accordance with the terms of the Subordinated Credit Agreement), (B) the charging of interest at the default rate pursuant to the Collateralterms of the Second Priority Documents, (C) the delivery of any default notices, (D) any suit or action instituted or maintained by the Second Lien Agent and/or the Second Priority Lenders solely to prevent the running of any applicable statute of limitation or any other similar restriction on claims, (E) any action to assert a compulsory cross-claim or counterclaim against any of the Grantors, provided that if such action is accompanied by a claim for monetary damages or collection action, any amount received in connection therewith shall be subject to the terms of this Agreement, and (F) any action to seek and obtain specific performance or injunctive relief to compel the Grantors to comply with (or not violate or breach) an obligation under the Second Priority Documents with respect to the conversion of the Second Priority Claims into Conversion Shares or with respect to the registration of the Conversion Shares or other matters exclusively related to compliance with the securities laws, so long as (I) such action is not accompanied by a claim for monetary damages or collection action and (II) such action is not otherwise prohibited by the terms of this Agreement, and (G) enforce the terms of any subordination agreement with regards to any indebtedness or other obligation subordinated to the Second Priority Obligations shall not, in each case so long as the Liens granted to secure the Subordinated Lien Obligations case, constitute a prohibited exercise of the Subordinated Lien Claimholders attach a right or remedy with respect to the proceeds thereof subject to the relative priorities described in Section 2Second Priority Claims.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the First Priority Claims and the Common Collateral, the First Lien Collateral Senior Agent and the First Lien Claimholders Priority Lenders may enforce the provisions of the First Lien Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine set forth in the exercise of their sole discretionFirst Priority Loan Documents and/or applicable law. 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 creditor lender under the UCC Uniform Commercial Code and under the comparable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. The First Priority Agent shall use its commercially reasonable efforts to provide notice to the Second Lien Agent of its intention to exercise and enforce its rights.
(c) Notwithstanding Unless and until the foregoingDischarge of First Priority Claims has occurred, subject to Section 3.1(a)(i) above, the Subordinated Collateral Trustee Second Lien Agent and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status each 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, Second Priority Lenders agrees that it will not take or receive receive, 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 or other Lien enforcement action), any Common Collateral or any proceeds of Collateral any disposition of Common Collateral, in each case in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Second Priority Claim or Common Collateral (or in respect of any Second Priority Claim or Common Collateral in its capacity as the event of the occurrence of an Insolvency or Liquidation Proceeding with respect to a creditor, unless and until the Discharge of First Lien Obligations has occurredGrantor). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations Priority Claims has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c)Agreement, the sole right of the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Lien Claimholders Second Priority Lenders with respect to the Common Collateral is shall be to hold a Lien on the Common Collateral pursuant to the Subordinated Lien Collateral Second Priority 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 First Lien Obligations Priority Claims has occurred.
(d) Subject to Sections 3.1(cthe provisos in clauses (i) and (ii) of Section 6.3(b):
3.1(a) above and without limiting the effect of other provisions of this Agreement, until the Discharge of the First Priority Claims, (1i) the Subordinated Collateral Trustee, for itself Second Lien Agent and on behalf each of the Subordinated Lien Claimholders, Second Priority Lenders agrees that the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Lien Claimholders Second Priority Lenders will not take any action that would hinder any exercise of remedies under with respect to the First Lien Documents Second Priority Claims, the Second Priority Liens or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition the Common Collateral until the end of the CollateralSecond Priority Standstill Period, whether by foreclosure or otherwise;
and (2ii) the Subordinated Collateral Trustee, for itself Second Lien Agent and on behalf each of the Subordinated Lien ClaimholdersSecond Priority Lenders, hereby waives any and all rights it or the Subordinated Lien Claimholders applicable Second Priority Lenders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Senior Agent or the First Lien Claimholders Priority Lenders seek to enforce or collect the First Lien Obligations Priority Claims or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementPriority Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Senior Agent or First Lien Claimholders Priority Lenders is adverse to the interest of the Subordinated Lien Claimholders; andSecond Priority Lenders, but subject in all events, to the Senior Agent and the First Priority Lenders acting in good faith and in accordance with the terms of this Agreement and the First Priority Loan Documents.
(3e) The Second Lien Agent and each of the Subordinated Collateral Trustee Second Priority Lenders hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Second Priority Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Senior Agent or the First Lien Claimholders Priority Lenders with respect to the First Priority Claims or the Common Collateral as set forth in this Agreement and the First Lien Priority Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 and Subordination Agreement (Body Central Corp)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Senior 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:,
(1i) neither any Second Priority Representative nor any Second Priority Debt Party will not (A) exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Shared Collateral (including the exercise in respect of any right of setoff or any right under any lockbox agreementSecond Priority Debt Obligations, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
; provided, that, subject to extension as a result of any Permitted Delay, 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) after a period (such period, as extended as a result of any Permitted Delay, 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 (1) an Event of Default (as defined under the Second Priority Debt Documents) has occurred and is continuing thereunder, (2) will 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 (3) 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 (any such period while the Senior Representatives or Senior Secured Parties are diligently pursuing such rights and remedies or making any such attempt or any such Grantor is a debtor, a “Permitted Delay”), (B) contest, protest or object to any foreclosure proceeding or action brought with respect to the Shared Collateral or any other Senior Collateral by the First Lien Collateral Agent Senior Representative or any First Lien Claimholder Senior Secured Party in respect of the Senior Obligations, the exercise of any right by the Senior Representative or any Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Senior Representative or any Senior 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 First Lien Claimholder such party of any rights and remedies relating to the Shared Collateral under the First Lien Senior Debt Documents or otherwise; and
otherwise in respect of the Senior Collateral or the Senior Obligations, (3C) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action during the Standstill Period or any other exercise of any rights or remedies relating to the CollateralShared Collateral in respect of Senior Obligations or (D) credit bid (it being understood, in each case so long as for the Liens granted avoidance of doubt, that a credit bid which includes a cash portion sufficient to secure the Subordinated Lien cause a Discharge of Senior Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.will not be precluded), and
(bii) 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 Grantorexcept as otherwise provided herein, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-offsetoff, recoupment and the right to credit bid their debt) and, subject to Section 5.1in that connection, to make determinations regarding the release, disposition, disposition or restrictions with respect to the Shared Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second Priority Representative or any Subordinated Second Priority Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, any Second Priority Representative may file a claim, proof of claim, or statement of interest with respect to the Second Priority Debt Obligations under its Second Priority Debt Facility, (B) any Second Priority Representative may take any action (not adverse to the prior Liens on the Shared Collateral securing the Senior Obligations or the rights of the Senior Representative or the Senior 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 Claimholder; provided thaton, the Lien securing Shared Collateral, (C) any Second Priority Representative and the Subordinated Lien Obligations shall remain 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 Article VI, (E) in any Insolvency or Liquidation Proceeding, 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 of the claims or Liens of the Second Priority Debt 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 Debt Parties may vote on any plan of reorganization, but only to the extent consistent with the provisions hereof and, in respect of any such vote for a reorganization plan which constitutes a “cram-up” under Section 1129(b) of the Bankruptcy Code on the proceeds of such Collateral released or disposed of subject Senior Secured Parties, to which the relative priorities described in Section 2Senior Representative consents. In exercising rights and remedies with respect to the Senior Collateral, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties may enforce the provisions of the First Lien Senior 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 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 creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cb) Notwithstanding Until the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status expiration of the Liens on the Collateral securing the First Lien ObligationsStandstill Period and subject to Section 4.02, 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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeSecond Priority Representative, on behalf of itself and each Subordinated Lien ClaimholderSecond Priority Debt Party under its Second Priority Debt Facility, agrees that it will not not, in the context of its role as secured creditor, take or receive any Shared Collateral or any proceeds Proceeds of Shared Collateral in connection with the exercise of any right or remedy (including set-off setoff and recoupment) with respect to any Shared Collateral in its capacity as a creditor, unless and until the Discharge respect of First Lien Obligations has occurredSecond Priority Debt Obligations. Without limiting the generality of the foregoing, unless and until the Discharge expiration of First Lien Obligations the Standstill Period has occurred, except as expressly provided in Sections 3.1(a), 6.3(bthe proviso in clause (ii) and this of Section 3.1(c3.01(a), the sole right of the Subordinated Collateral Trustee Second Priority Representatives and the Subordinated Lien Claimholders Second Priority Debt Parties with respect to the Shared Collateral is to hold a Lien on the Shared Collateral in respect of Second Priority Debt Obligations pursuant to the Subordinated Lien Collateral Second Priority 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 First Lien Senior Obligations has occurred.
(dc) Subject to Sections 3.1(cthe proviso in clause (ii) and of Section 6.3(b):
3.01(a), (1i) the Subordinated Collateral Trusteeeach Second Priority Representative, for itself and on behalf of the Subordinated Lien Claimholderseach Second Priority Debt Party under its Second Priority Debt Facility, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders neither such Second Priority Representative nor any such Second Priority Debt Party will not take any action that would hinder any exercise of remedies undertaken by the Senior Representative or any Senior Secured Party with respect to the Shared Collateral under the First Lien Documents or is otherwise prohibited hereunderSenior Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise;
, and (2ii) the Subordinated Collateral Trusteeeach Second Priority Representative, for itself and on behalf of the Subordinated Lien Claimholderseach Second Priority Debt Party under its Second Priority Debt Facility, hereby waives any and all rights it or the Subordinated Lien Claimholders any such Second Priority Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Parties seek to enforce or collect the First Lien Senior Obligations or the Liens securing the First Lien Obligations granted in on any of the First Lien Collateral undertaken in accordance with this AgreementSenior Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent Senior Representative or First Lien Claimholders any other Senior Secured Party is adverse to the interest interests of the Subordinated Lien Claimholders; andSecond Priority Debt Parties.
(3d) the Subordinated Collateral Trustee Each Second Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Second Priority Debt Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Parties with respect to the Senior Collateral as set forth in this Agreement and the First Lien Senior Debt Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)Until the expiration of the Standstill Period, the Subordinated Collateral Trustee and Senior Representative shall have the Subordinated Lien Claimholders may exclusive right to exercise rights and remedies as unsecured creditors against the Company any right or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor remedy with respect to the Subordinated Lien 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, such judgment the Second Lien Agent shall be subject have the exclusive right to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee exercise any right or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 remedy with respect to the First Lien 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 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 1 contract
Sources: Combined Credit Agreements (Quicksilver Resources Inc)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Senior 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 Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(i) neither any Second Priority Representative nor any Second Priority Debt Party will (1) will not take any Enforcement Action or exercise or seek to exercise any other rights or remedies (including setoff or recoupment) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, except that the Designated Second Priority Representative may take an Enforcement Action or exercise any or all such rights (but not rights the exercise of which is otherwise prohibited by this Agreement) following a Standstill Period if, upon expiration of the Standstill Period, (A) the Senior Representative or Senior Secured Parties have not commenced any Enforcement Action and are not otherwise diligently pursuing their rights and remedies with respect to all or a material portion of the Shared Collateral, (B) no Grantor is a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding and (C) any acceleration of the Second Priority Debt Obligations has not been rescinded. As used herein, “Standstill Period” means a period that commences on the date of delivery of written notice from the Designated Second Priority Representative to the Senior Representative stating that (I) an event of default has occurred and is continuing with respect to the Second Priority Debt, (II) the Second Priority Debt Obligations for which the Designated Secured Priority Representative serves as Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Second Priority Debt Documents, and (III) the Designated Second Priority Representative intends to exercise its rights to take such actions, and which period expires on the 180th consecutive day following the commencement of the Standstill Period; (2) contest, protest or object to any Enforcement Action brought with respect to the Shared Collateral (including or any other Senior Collateral by the Senior Representative or any Senior Secured Party in respect of the Senior Obligations, the exercise of any right of setoff by the Senior Representative or any right Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee Senior Representative or any Subordinated Lien Claimholder Senior Secured Party either is a party) party or institute any action or proceeding with respect to such may have rights or remedies (including any action of foreclosure);
(2) will not contestas a third party beneficiary, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder such party of any rights and remedies relating to the Shared Collateral under the First Lien Senior Debt Documents or otherwiseotherwise in respect of the Senior Collateral or the Senior Obligations; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, Shared Collateral in each case so long as the Liens granted to secure the Subordinated Lien Obligations respect of the Subordinated Lien Claimholders attach Senior Obligations; or (4) object to the proceeds thereof subject to manner in which the relative priorities described in Section 2.
(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 Senior Representative or any other GrantorSenior Secured Party may seek to enforce or collect the Senior Obligations or their Liens, regardless of whether any action or failure to act by or on behalf of the Senior Representative or any other Senior Secured Party is, or could be, adverse to the interests of the Second Priority Debt Parties, and will not assert, and each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, waives, to the fullest extent permitted by law, any right to 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; and (ii) except as otherwise provided herein, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-offsetoff, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, disposition or restrictions with respect to the Shared Collateral without any consultation with or the consent of the Subordinated Collateral Trustee any Second Priority Representative or any Subordinated Second Priority Debt Party, except that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, any Second Priority Representative may file a claim, proof of claim, or statement of interest with respect to the Second Priority Debt Obligations under its Second Priority Debt Facility, (B) any Second Priority Representative may take any action (not adverse to the prior Liens on the Shared Collateral securing the Senior Obligations or the rights of the Senior Representative or the Senior 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 Claimholder; provided thaton, the Lien securing Shared Collateral, so long as no such action is, or could reasonably be expected to be, otherwise inconsistent with the Subordinated Lien Obligations shall remain terms of this Agreement, (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 Article VI, (E) in any Insolvency or Liquidation Proceeding, any Second Priority Debt Party 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, including without limitation any claims secured by the Shared Collateral, if any, in each case in accordance with the terms of this Agreement, (F) in any Insolvency or Liquidation Proceeding, the Second Priority Debt Parties may vote on any plan of reorganization, but only to the proceeds of such Collateral released or disposed of extent consistent with the provisions hereof, and (G) from and after the Standstill Period, but subject to the relative priorities satisfaction of the conditions set forth in Section 3.01(a)(i)(1), the Designated Second Priority Representative (or a Person authorized by it) 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) (the actions described in Section 2clauses (A) through (G) preceding being “Permitted Second Lien Actions”). In exercising rights and remedies with respect to the Senior Collateral, the First Lien Collateral Agent Senior Representative and the First Lien Claimholders Senior Secured Parties may enforce the provisions of the First Lien Senior Debt Documents (and, as applicable, the Hedge Contracts and Treasury Management Agreements to which they are a party) 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 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 creditor lender under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Second Lien Intercreditor Agreement (Callon Petroleum Co)
Exercise of Remedies. (a) Until the Discharge of First Lien Priority Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Second Priority Claimholders:
(1i) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Priority Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (including i) the date on which the Second Priority Collateral Agent declared the existence of any action “Event of foreclosureDefault” under any Second Priority Documents and demanded the repayment of all the principal amount of any Second Priority Obligations and (ii) the date on which the First Priority Collateral Agent received notice from the Second Priority Collateral Agent of such declaration of an “Event of Default” (the “Standstill Period”) (provided that the Second Priority Collateral Agent shall have given the First Priority Collateral Agent at least 15 days written notice prior to such Enforcement Action, which notice may be given during the pendency of the applicable Standstill Period); provided, further, that notwithstanding anything herein to the contrary, in no event shall the Second Priority Collateral Agent or any Second Priority Claimholder exercise any rights or remedies with respect to the Collateral (subject to customary rights such as the right to timely file a proof of claim) if, notwithstanding the expiration of the Standstill Period, the First Priority Collateral Agent or First Priority Claimholders shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Priority Collateral Agent) or the Company or Guarantor is subject to an Insolvency or Liquidation Proceeding;
(2ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Priority Collateral Agent or any First Lien Priority Claimholder or any other exercise by the First Lien Priority Collateral Agent or any First Lien Priority Claimholder of any rights and remedies relating to the Collateral under the First Lien Priority Loan Documents or otherwise; and;
(3iii) subject to their rights under clause (a)(1a)(i) above, will not object to the forbearance by the First Lien Priority Collateral Agent or the First Lien Priority Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted First Priority Collateral Agent in excess of those necessary to secure achieve a Discharge of First Priority Obligations are distributed in accordance with the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof UCC and other applicable law, subject to the relative priorities described herein;
(iv) will not take or cause to be taken any action, the purpose or effect of which is to make any Lien in Section 2respect of any Second Priority Obligation pari passu with or senior to, or give any Second Priority Claimholder any preference or priority relative to, the Liens with respect to the First Priority Obligations or the First Priority Claimholders; and
(v) will not institute any suit or other proceeding or assert in any suit, Insolvency or Liquidation Proceeding or other proceeding any claim against any First Priority Claimholder or First Priority Collateral Agent seeking damages from or other relief by way of specific performance, injunction or otherwise, with respect to, and no First Priority Claimholder or First Priority Collateral Agent shall be liable to the Second Priority Collateral Agent or any Second Priority Claimholder for, any action taken or omitted to be taken by such First Priority Claimholder or First Priority Collateral Agent with respect to any Collateral or pursuant to the First Priority Loan Documents.
(b) Until the Discharge of First Lien Priority Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(i), the First Lien Priority Collateral Agent and the First Lien Priority Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to “credit bid bid” their debt, except that the Second Priority Collateral Agent shall have the “credit bid” rights (subject to customary rights such as the right to timely file a proof of claim) set forth in Section 3.1(c)(vi)) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Priority Collateral Trustee Agent or any Subordinated Lien Second Priority Claimholder; provided thatthat any proceeds received by the First Priority Collateral Agent in excess of those necessary to achieve a Discharge of First Priority Obligations are distributed in accordance with the UCC and other applicable law, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2herein. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Priority Collateral Agent and the First Lien Priority Claimholders may enforce the provisions of the First Lien Priority 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 in compliance with any applicable law and without consultation with or consent of the Second Priority Collateral Agent or any Second Priority Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Priority Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Priority Collateral Trustee Agent and any Subordinated Lien Second Priority Claimholder may:
(1i) file a claim or statement of interest with respect to the Subordinated Lien Second Priority Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Priority Obligations, or the rights of any First Lien Priority Collateral Agent or the First Lien Priority Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien Second Priority Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Lien Second Priority Obligations and the Collateral; provided that no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Priority Collateral Agent or any Second Priority Claimholder may be inconsistent with the provisions of this Agreement;
(v) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i); and
(vi) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Priority Collateral Agent or any First Priority Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Priority Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Priority Obligations. The Subordinated Second Priority Collateral TrusteeAgent, on behalf of itself and each Subordinated Lien Claimholderthe Second Priority Claimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Priority Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(i) to the extent the Second Priority Collateral Agent and Second Priority Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Priority Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Second Priority Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Second Priority 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 First Lien Priority Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1i) the Subordinated Second Priority Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien Second Priority Claimholders, agrees that the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Second Priority Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Priority Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2ii) the Subordinated Second Priority Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien Second Priority Claimholders, hereby waives any and all rights it or the Subordinated Lien Second Priority Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Priority Collateral Agent or the First Lien Priority Claimholders seek to enforce or collect the First Lien Priority Obligations or the Liens securing the First Lien Priority Obligations granted in any of the First Lien Priority Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Priority Collateral Agent or First Lien Priority Claimholders is adverse to the interest of the Subordinated Lien Second Priority Claimholders; and
(3iii) the Subordinated Second Priority Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Second Priority Security Documents or any other Subordinated Lien Second Priority Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Priority Collateral Agent or the First Lien Priority Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Priority Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)To the extent not inconsistent with the terms of this Agreement, the Subordinated Second Priority Collateral Trustee Agent and the Subordinated Lien Second Priority 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 Subordinated Lien Second Priority Obligations in accordance with the terms of the Subordinated Lien Second Priority Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated Lien Second Priority 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 Subordinated Lien Second Priority Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Priority Obligations) as the other Liens securing the Subordinated Lien Second Priority Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Second Priority Collateral Trustee Agent or any Subordinated Lien Second Priority Claimholders of the required payments of interest, principal principal, premium, fees and other amounts owed in respect of the Subordinated Lien Second Priority Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Priority Collateral Trustee Agent or any Subordinated Lien Second Priority Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs shall impair or otherwise adversely affects affect any rights or remedies the First Lien Priority Collateral Agent or the First Lien Priority Claimholders may have with respect to the First Lien Priority Collateral.
Appears in 1 contract
Sources: Indenture (Stonemor Inc.)
Exercise of Remedies. (a) Until During the Discharge continuance of First Lien Obligations has occurredan Event of Default, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantorand without limiting Lender’s rights pursuant to Article IX hereof, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise or seek to Lender may exercise any rights or remedies with respect to any Collateral (including the exercise all of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any its rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) aboveas a secured party, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 pledgee and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions lienholder with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided thatAccount Collateral, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described other applicable terms and conditions in the Loan Documents. Without limitation of the foregoing, upon and during the continuance of any Event of Default, Lender may withdraw amounts from the Accounts, including without limitation, the Reserve Accounts, and use the Account Collateral (subject to Lender satisfying its obligations under Section 2. In 4.2 and Section 4.3) for any of the following purposes: (i) repayment of the Debt in such order, priority and proportion as determined by Lender in its sole and absolute discretion, including, but not limited to, interest payments, principal prepayments and the Prepayment Premium applicable to such full or partial prepayment (as applicable); (ii) payment of such items for which such funds were deposited in such order, proportion and priority as Lender may determine in its sole discretion; (iii) payment of any actual out-of-pocket amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under any of the Loan Documents; (iv) payment of any item as required or permitted under this Agreement; or (v) any other purpose not prohibited by Legal Requirements, and all of the foregoing may be paid in such order, priority and proportion as Lender may determine in its sole discretion; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Collateral, the First Lien Account Collateral Agent and the First Lien Claimholders may enforce the provisions shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the 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 Account Collateral to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of effect a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws cure of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement Event of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien ObligationsDefault, or to pay the rights of any First Lien Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to createDebt, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurredor, except as expressly provided herein, in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right any specific order of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any priority. The exercise of any or all of Lender’s rights and remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Loan Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the rights and remedies Mortgage or a foreclosure of any other security interests securing the First Lien Collateral Agent or Debt evidenced by the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) 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 Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the earlier of: (including i) following the occurrence of any action Event of foreclosureDefault under any Second Lien Loan Document, the date on which the 2024 First Lien Collateral Agent was given notice thereof in accordance with Section 8.9 and (ii) following the occurrence of the acceleration of the Second Lien Obligations, the date on which the 2024 First Lien Collateral Agent was given notice thereof in accordance with Section 8.9 (the “Standstill Period”); provided, further, that 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 so long as, notwithstanding the expiration of the Standstill Period, the 2024 First Lien Collateral Agent or 2024 First Lien Claimholders shall have commenced and be diligently pursuing an Enforcement Action with respect to all or any material portion of the Collateral or the Company or any other Grantor is then, and then only for so long as it remains, a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding (with prompt notice of such exercise to be given to the Second Lien Collateral Agent);
(2) will not contest, protest protest, hinder, delay, or object to any foreclosure proceeding or action brought by the 2024 First Lien Collateral Agent or any 2024 First Lien Claimholder or any other exercise by the 2024 First Lien Collateral Agent or any 2024 First Lien Claimholder of any rights and remedies relating to the Collateral under the 2024 First Lien Loan Documents or otherwise; andotherwise (including any Enforcement Action initiated by or supported by the 2024 First Lien Collateral Agent or any 2024 First Lien Claimholder);
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the 2024 First Lien Collateral Agent in excess of those necessary to achieve a Discharge of 2024 First Lien Obligations are distributed in accordance with Section 4.1 hereof and applicable law (to the extent such law is not inconsistent with the priority of distributions provided under Section 4.1 hereof);
(4) will not attempt to direct the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders to exercise any right, remedy or power with respect to the Collateral or exercise any consent to the exercise by the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders of any right, remedy or power with respect to the Collateral;
(5) will not institute any suit or assert in any suit, Insolvency or Liquidation Proceeding or other proceeding any claim against the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders seeking damages or other relief by way of specific performance, instructions or otherwise with respect to, and neither the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders will be liable for, any action taken or omitted to be taken by any of them with respect to the Collateral;
(6) will not take any action to cause or attempt to cause any Lien on the Collateral securing the Second Lien Obligations to be senior to or pari passu with the Liens granted securing the 2024 First Lien Obligations; and
(7) will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to secure challenge the Subordinated enforceability of any provision of this Agreement or the enforceability of any Lien Obligations securing the 2024 First Lien Obligations. The foregoing shall not be construed to prohibit the Second Lien Collateral Agent from enforcing the provisions of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2this Agreement.
(b) [Reserved].
(c) Until the Discharge of 2024 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, subject to Section 3.1(a)(1), the 2024 First Lien Collateral Agent and the 2024 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies commence and maintain an Enforcement Action (including set-off, recoupment and except that Second Lien Collateral Agent shall have the right to credit bid their debt) andrights set forth in Section 3.1(d)(7)), and subject to Section 5.1, to make determinations regarding the release, disposition, release or restrictions dispositions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholder; provided that, that any proceeds received by the 2024 First Lien securing the Subordinated Collateral Agent in excess of those necessary to achieve a Discharge of 2024 First Lien Obligations shall remain on are distributed to the proceeds of such Second Lien Collateral released or disposed of subject to Agent in accordance with the relative priorities described in Section 2herein. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the 2024 First Lien Collateral Agent and the 2024 First Lien Claimholders may enforce the provisions of the 2024 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 discretiondiscretion in compliance with this Agreement and any applicable law and without consultation with the Second Lien Collateral Agent or any Second Lien Claimholder. Such exercise and enforcement shall include include, subject to compliance with applicable laws, the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(cd) Notwithstanding the foregoing, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder may:
(1) vote, file a proofs of claim or statement and take any other action not in violation of interest the provisions of this Agreement with respect to the Subordinated Second Lien Obligations; provided that an Obligations in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2) take any action (not adverse to the priority status of the Liens on the Collateral securing the 2024 First Lien Obligations, or the rights of any 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect the validity, enforceability, perfection or priority (to the extent permitted by this Agreement) of its Lien on the CollateralCollateral and neither the 2024 First Lien Collateral Agent nor the other 2024 First Lien Claimholders will object to or contest, or otherwise support any other person in contesting or objecting to, any such action;
(3) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions that are, in each case, not in accordance with violation of the terms of this Agreement, with respect to the Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Collateral Agent or any Second Lien Claimholder may seek, or otherwise support, any relief that would alter the lien priorities provided herein or otherwise be inconsistent with or seek to contravene the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); provided that in the event that the exercise any of rights or remedies are necessary at any time after the expiration of the Standstill Period, the 2024 First Lien Claimholders and the Second Lien Claimholders shall reasonably discuss the possibility of undertaking a coordinated enforcement process, provided that neither party shall be responsible for paying the other party’s costs in connection with any such enforcement and, unless the 2024 First Lien Claimholders and the Second Lien Claimholders otherwise agree in writing, such discussions shall not reinstate or otherwise extend the Standstill Period or constitute a forbearance or waiver of the Second Lien Claimholders’ ability to exercise rights or remedies after the termination of the Standstill Period;
(6) exercise any right or remedy permitted under Section 3.1(f);
(7) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the 2024 First Lien Collateral Agent or any 2024 First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of 2024 First Lien Obligations;
(8) take any action to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims;
(9) seek specific performance or other injunctive relief to compel the Company to comply with a non-payment obligation (including, without limitation, any Equity Rights) under any Second Lien Loan Document or other agreement or Equity Interest with respect to any Equity Rights;
(10) exercise any Equity Rights; and
(11) inspect or appraise the Collateral (and engage or retain investment bankers or appraisers for the sole purpose of appraising or valuing the Collateral) or receive information or reports concerning the Collateral. The Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of itself and each Subordinated other Second Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of 2024 First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bpermitted by Section 3.1(a)(1) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and (to the extent granted therein the Second Lien Collateral Agent and Second Lien Claimholders are permitted to receive a share of retain the proceeds thereof, if any, after the Discharge thereof in accordance with Section 4.2 of First Lien Obligations has occurredthis Agreement).
(de) Subject to Sections 3.1(c3.1(a) and (d) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, agrees that the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the 2024 First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the CollateralCollateral by the 2024 First Lien Collateral Agent, whether by foreclosure or otherwise, absent gross negligence, willful misconduct, bad faith, self-dealing or fraud on the part of 2024 First Lien Collateral Agent or such 2024 First Lien Claimholder, as the case may be;
(2) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the 2024 First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the 2024 First Lien Obligations or the Liens securing the 2024 First Lien Obligations granted in any of the 2024 First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the 2024 First Lien Collateral Agent or 2024 First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders, in each case absent gross negligence, willful misconduct, bad faith, self-dealing or fraud on the part of the 2024 First Lien Collateral Agent or such 2024 First Lien Claimholder, as the case may be; and
(3) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the 2024 First Lien Credit Documents.
(ef) Except As long as specifically set forth in Sections 3.1(a) such exercise is not contrary to the terms of this Agreement, and (d)whether or not any Insolvency or Liquidation Proceeding has been commenced, the Subordinated Second Lien Collateral Trustee Agent and the Subordinated 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the 2024 First Lien Obligations) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(fg) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit or limit the payment to and the receipt by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement. Nothing Except as may be expressly provided herein to the contrary for the exclusive benefit of the Second Lien Claimholders, nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the 2024 First Lien Collateral Agent or the 2024 First Lien Claimholders may have with respect to the 2024 First Lien Collateral.
(h) The 2024 First Lien Collateral Agent shall endeavor to deliver simultaneous written notice to the Second Lien Collateral Agent of the 2024 First Lien Collateral Agent commencing any Enforcement Action (“Enforcement Notice”).
Appears in 1 contract
Exercise of Remedies. (a) 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 Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)Collateral;
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above, will not object to (and will waive any and all claims with respect to) the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debtdebt (including debt related to any DIP Financing) andin any sale, except that the Second Lien Representative shall have the credit bid rights set forth in Section 3.1(c)(5)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent or any Subordinated other Second Lien ClaimholderSecured Party; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of any First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 hereof. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with the Second Lien Representative, the Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties to exercise 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 Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) subject to Section 6.1(b), vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by the Second Lien Representative, the Second Lien Collateral Agent or any other Second Lien Secured Party may be inconsistent with the provisions of this Agreement;
(5) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations; and
(6) object to any proposed acceptance of Collateral by a First Lien Representative, a First Lien Collateral Agent or First Lien Secured Party pursuant to Section 9-620 of the UCC. The Subordinated Second Lien Representative and the Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Secured Parties represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b3.1(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and Section 6.3(b(c):
(1) the Subordinated Second Lien Representative and the Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders Secured Parties represented by it will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Second Lien Representative and the Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties represented by it, hereby waives any and all rights such Second Lien Representative or such Second Lien Collateral Agent or such Second Lien Secured Parties represented by it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the other First Lien Claimholders seek Secured Party seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or other First Lien Claimholders Secured Party is adverse to the interest of the Subordinated any Second Lien ClaimholdersSecured Party; and
(3) the Subordinated Second Lien Representative and the Second Lien Collateral Trustee Agent, for itself and on behalf of the Second Lien Secured Parties represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Secured Party with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d)this Agreement, the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Secured Party of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Second Lien Representative, the Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Secured Party of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem or as a result of any other violation by any Second Lien Secured Party of the express terms of this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the other First Lien Claimholders Secured Party may have with respect to the First Lien Collateral.
(g) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement.
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement (Ion Geophysical Corp)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company or any other GrantorObligors, each of the Subordinated Second Lien Collateral Trustee Agents, for itself and the Subordinated on behalf of its Related Second Lien Claimholders, hereby agrees that it and its Related Second Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies (including setoff, recoupment and the right to credit bid, if any) with respect to any Collateral (including the exercise of or institute or commence, or join with any right of setoff Person in instituting or commencing, any other Enforcement Action or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any other 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); provided that the Directing Second Lien Collateral Agent or any Person authorized by it may commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least 180 days since the Directing First Lien Collateral Agent shall have received notice from the Directing Second Lien Collateral Agent with respect to the acceleration by the relevant Second Lien Claimholders of the maturity of all then outstanding Second Lien Obligations (and requesting that Enforcement Action be taken with respect to the Collateral) so long as the applicable “event of default” shall not have been cured or waived (or the applicable acceleration rescinded) (the “Standstill Period”); provided further that notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agents or any other Second Lien Claimholders exercise any rights or remedies with respect to any Collateral or institute or commence, or join with any Person in instituting or commencing, any other Enforcement Action or any other action or proceeding with respect to such rights or remedies, if, notwithstanding the expiration of the Standstill Period, either (A) the Directing First Lien Collateral Agent or any other First Lien Claimholder shall have commenced and be diligently pursuing (or shall have sought or requested and be diligently pursuing relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and the pursuit of) an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (with any determination of which Collateral to proceed against, and in what order, to be made by the Directing First Lien Collateral Agent or such First Lien Claimholders in their reasonable judgment) or (B) any of the Obligors is then a debtor in any Insolvency or Liquidation Proceeding;
(2) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the Directing First Lien Collateral Agent or any other First Lien Claimholder or any other exercise by the Directing First Lien Collateral Agent or any other First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and;
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the Directing First Lien Collateral Agent or the other First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action Enforcement Action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Liens granted to secure the Subordinated Directing First Lien Obligations of the Subordinated Collateral Agents or other First Lien Claimholders attach in excess of those necessary to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the achieve a 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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case are distributed in accordance with the terms of this AgreementSection 4.1; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral Collateral, or any proceeds of Collateral or payment with respect to any Collateral, in connection with the any Enforcement Action or any other exercise of any right or remedy with respect to any Collateral or any Insolvency or Liquidation Proceeding in its capacity as a creditor or in connection with any insurance policy award or any award in a condemnation or similar proceeding (including set-off and recoupmentor deed in lieu of condemnation) with respect to any Collateral Collateral, in its capacity as a creditor, each case unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Collateral Agent and its Related Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.1. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a3.1(a)(1), 6.3(b3.1(c) and this Section 3.1(c6.3(b), the sole right of the Subordinated each Second Lien Collateral Trustee Agent and the Subordinated other Second Lien Claimholders with respect to the Collateral (other than inspection, monitoring, reporting and similar rights provided for in the Second Lien Financing Documents) is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any First Lien Obligor, subject to Sections 3.1(a)(1), 3.1(c) and 6.3(b), the First Lien Collateral Agents and the other First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement Action or otherwise exercise any rights and remedies (including set-off, recoupment and the right to “credit bid” their debt, except that the Second Lien Collateral Agents shall have the “credit bid” rights set forth in Section 3.1(c)(6)), and make determinations regarding the release, Disposition, or restrictions with respect to the Collateral, in each case without any consultation with or the consent of any Second Lien Collateral Agent or any other Second Lien Claimholder; provided that any proceeds received by any First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agents and the other First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise Dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or other Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, each Second Lien Collateral Agent and any other Second Lien Claimholder may:
(1) file a claim, proof of 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 any of the Second Lien Obligors by a Person other than a Second Lien Claimholder;
(2) take any action in order to create, perfect, preserve or protect (but not enforce) its Lien on the Collateral to the extent (A) 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 other First Lien Claimholders to exercise rights and remedies in respect thereof, and (B) not otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 5.1;
(3) 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 of the Second Lien Claimholders, including any claims or Liens secured by the Collateral, if any, in each case to the extent not inconsistent with the terms of this Agreement;
(4) vote on any plan of reorganization or similar dispositive restructuring plan, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions with respect to the Second Lien Obligations and the Collateral that are, in each case, in accordance with the terms of this Agreement, including Section 6.9(c); provided that no filing of any claim or vote, or pleading relating to such claim or vote, to accept or reject a disclosure statement, plan of reorganization or similar dispositive restructuring plan, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Collateral Agent or any other Second Lien Claimholder may be inconsistent with the terms of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the Directing First Lien Collateral Agent or any other First Lien Claimholder, or any sale of any Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations.
(d) Subject to Sections 3.1(a)(1), 3.1(c) and Section 6.3(b):
(1) the Subordinated each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated its Related Second Lien Claimholders, :
(1) agrees that the Subordinated Collateral Trustee it and the Subordinated its Related Second Lien Claimholders will not take any action that would hinder hinder, delay, limit or prohibit any exercise of rights or remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer collection or other disposition Disposition of the any Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien securing any First Lien Obligations or any First Lien 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;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated its Related Second Lien Claimholders may have as a junior lien Lien creditor or otherwise (whether arising under the UCC or under any other law) to object to the manner in which the First Lien Collateral Agent Agents or the other First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this AgreementObligations, regardless of whether any action or failure to act by or on behalf of the any First Lien Collateral Agent or any other First Lien Claimholders is adverse to the interest of the Subordinated any Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Collateral Agent or the other First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated The Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Obligors that has have guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Initial Second Lien Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Obligor, prior to the termination of the Standstill Period or as otherwise prohibited pursuant to the second proviso in Section 3.1(a)(1)); provided that (i) any such exercise shall not be directly or indirectly inconsistent with or prohibited by the terms of this Agreement (including Section 6 and any provision prohibiting or restricting the Second Lien Claimholders from taking various actions or making various objections) and (ii) in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing . Nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Collateral Trustee Agent or any Subordinated Second Lien Claimholders Claimholder of the required payments of principal, premium, interest, principal fees and other amounts owed in respect of due under the Subordinated Initial Second Lien Obligations Documents so long as such receipt is not the direct or indirect result of the exercise by the Subordinated a Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (in respect of Collateral, including set-off and recoupment) or enforcement in contravention any right 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 Collateralsetoff.
Appears in 1 contract
Exercise of Remedies. (a) Until the Discharge date on which all the Senior Secured Claims shall have been paid in full, the Senior Representative, in its sole discretion and to the exclusion of First Lien Obligations has occurredthe Subordinated Representatives, shall have, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against default under the Company or Indenture shall have occurred and be continuing and both before and after the commencement of any other Grantorproceeding referred to in Section 9.07(a), the Subordinated Collateral Trustee sole and exclusive right (as between the Senior Representative, on the one hand, and the Subordinated Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right of setoff or any right under any lockbox agreementRepresentatives, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject other) to direct the relative priorities described in Section 2. In exercising rights and remedies Security Trustee to take all action with respect to the Collateral, including the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions right to exercise or direct voting or other consensual rights, to foreclose or forebear from foreclosure in respect of the First Lien Documents Collateral and exercise remedies thereunderto accept the Collateral in full or partial satisfaction of any Senior Secured Claim, 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeRepresentatives agree that, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided Senior Secured Claims have been paid in Sections 3.1(a), 6.3(b) and this Section 3.1(c)full, the sole only right of the Subordinated Collateral Trustee and Secured Claimants under this Agreement is for the Subordinated Lien Claimholders with respect Secured Claims to be secured by the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Lien Collateral Documents for the period and to the extent granted therein provided for herein or in the Indenture and to receive a share of the proceeds thereofof the Collateral, if any, after subject to payment priorities set forth in Article III of the Discharge of First Lien Obligations has occurredIndenture.
(db) Subject The Subordinated Representatives agree that, so long as any of the Senior Secured Claims shall remain unpaid, they and the Subordinated Secured Claimants will not commence, or join with any creditor other than the Security Trustee and the Senior Secured Claimants in commencing, any enforcement, collection, execution, levy or foreclosure proceeding with respect to Sections 3.1(c) the Collateral or proceeds of Collateral. Upon request by the Senior Representative, the Subordinated Representatives and Section 6.3(b):the Subordinated Secured Claimants will, at the expense of the Issuer, join in enforcement, collection, execution, levy or foreclosure proceedings and otherwise cooperate fully in the maintenance of such proceedings by the #4821-3610-4420v6 Security Trustee, including by executing and delivering all such consents, pleadings, releases and other documents and instruments as the Security Trustee may reasonably request in connection therewith, it being understood that the conduct of such proceedings shall at all times be under the exclusive control of the Security Trustee acting upon the directions of the Senior Representative.
(1c) The Subordinated Representatives agree, upon written request by the Subordinated Collateral TrusteeSenior Representative, for itself to release the liens and on behalf security interests in favor of the Subordinated Lien ClaimholdersSecured Claimants in any Collateral and to execute and deliver all such directions, agrees that consents, pleadings, releases and other documents and instruments as the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderSenior Representative may reasonably request in connection therewith, including upon any sale, lease, exchange, transfer or other disposition of the Collateralsuch Collateral or part thereof in accordance with, whether by foreclosure or otherwise;for application of proceeds pursuant to, Section 9.05(a).
(2d) the The Subordinated Collateral TrusteeRepresentatives agree that neither they nor any Subordinated Secured Claimants will contest, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor bring (or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether join in) any action or failure proceeding for the purpose of contesting, the validity, perfection or priority of, or seeking to act by or on behalf avoid, the rights of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent Senior Representative or the First Lien Claimholders Senior Secured Claimants in or with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Security Trust Agreement (Willis Lease Finance Corp)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether Whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company any Issuer or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) Until the Discharge of Senior Lien Obligations, but subject to the rights of the Cash Pay Second Lien Claimholders to make demand for and receive payment of principal, interest and fees in accordance with the Cash Pay Second Lien Indenture in an amount not to exceed their Cash Pay Pro Rata Share so long as (x) the source of the funds for each such payment is not proceeds of Collateral in connection with the exercise of any Enforcement Action and (y) no Insolvency Proceeding has commenced (such permitted payments, the “Cash Pay Payments”), the Second Lien Claimholders will not make any demand for or accept any payment or other distribution, whether in cash, securities or other property and whether or not scheduled under the Second Lien Securities or exercise or seek to exercise any rights or remedies with respect to Enforcement Action under any Collateral Second Lien Note Documents (including including, without limitation, the exercise of any right under any Second Lien Collateral Document) (for avoidance of setoff doubt, no such action may be taken by or on behalf of any Second Lien Claimholder against any Issuer or any right Second Lien Guarantor, nor may any payment be received therefrom (except the Cash Pay Payments) until the Discharge of Senior Lien Obligations has occurred); provided, however, that, for the avoidance of doubt, the foregoing is not intended to preclude any Second Lien Claimholder from receiving scheduled interest payments paid in kind, including scheduled interest payments paid in kind following the imposition of a default rate of interest if such rate may otherwise be imposed under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)Note Documents;
(2ii) Except to the extent permitted in Section 6.11 of this Agreement, no Second Lien Claimholder will not at any time (a) contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the First Senior Lien Collateral Agent or any First Senior Lien Claimholder or any other exercise by the First Senior Lien Collateral Agent or any First Senior Lien Claimholder Claimholder, of any rights and remedies relating to the Collateral under the First Senior Lien Note Documents or otherwise; and
, or (3b) subject to their rights under clause (a)(1) abovecontest, will not protest or object to the forbearance by the First Senior Lien Collateral Agent or the First Senior Lien Claimholders from bringing or pursuing any foreclosure proceeding or action Enforcement Action or any other exercise of any rights or remedies relating to the Collateralagainst any Issuer or Guarantor, in each case so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Second Lien Claimholders attach to the proceeds thereof of foreclosure proceedings against the Collateral, subject to the relative priorities described in Section 2.2.1 hereof; and
(biii) Until the Discharge of First Senior Lien Obligations has occurredObligations, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against but subject to the Company or any other Grantorrights of the Cash Pay Second Lien Claimholders to make demand for and receive Cash Pay Payments, the First Senior Lien Collateral Agent and the First Senior Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies take any Enforcement Action (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, disposition or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Claimholders; provided, however, that (1) in any Insolvency Proceeding commenced by or against the Issuers or any Subordinated other Grantor, any Second Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds Claimholder may file a proof of such Collateral released claim or disposed statement of subject to the relative priorities described in Section 2. In exercising rights and remedies interest with respect to the Second Lien Obligations, (2) 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 First terms of this Agreement, (3) 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 Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement, and (4) the Second Lien Claimholders shall be entitled to file 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. The foregoing shall not in any way limit or impair the right of the Second Lien Claimholders from bidding in cash for and purchasing Collateral in cash at any private or judicial foreclosure upon such Collateral initiated by the Senior Lien Collateral Agent.
(b) In exercising any Enforcement Action at any time, the Senior Lien Collateral Agent and the First Senior Lien Claimholders may at any time enforce the provisions of the First Senior Lien Note 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding Until the foregoing, the Subordinated Collateral Trustee Discharge of Senior Lien Obligations and whether or not any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company any Issuer or any other Grantor;
(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 Second Lien Claimholders to exercise 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions agree that are, in each case, in accordance with the terms of this Agreement, with respect to the Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it they will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentset off) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurredshall not take any Enforcement Action. Without limiting the generality of the foregoing, unless and until the Discharge of First Senior Lien Obligations has occurredObligations, except as expressly provided in Sections 3.1(a), 6.3(b) but subject to the rights of the Cash Pay Second Lien Noteholders to make demand for and this receive Cash Pay Payments and the Second Lien Claimholders’ rights under Section 3.1(c)3.3, the sole right of the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Senior Lien Obligations has occurredoccurred and otherwise in accordance with the terms of the Second Lien Note Documents and applicable law.
(d) Subject Without waiving any of their rights to Sections 3.1(c) and take the actions permitted in Section 6.3(b):
(1) 6.11 of this Agreement at any time, the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders will (i) agree not to take any action that would hinder any exercise of remedies Enforcement Action under the First Senior Lien Note Documents or that is otherwise prohibited hereunder, including by taking any saleEnforcement Action, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
and (2ii) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives waive any and all rights it or the Subordinated Lien Claimholders they may have as a junior lien creditor or otherwise to object to the manner in which the First Senior Lien Collateral Agent or the First Senior Lien Claimholders seek to enforce or collect the First Senior Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Senior Lien Collateral undertaken in accordance with this AgreementCollateral, regardless of whether any action or failure to act by or on behalf of the First Senior Lien Collateral Agent or First Senior Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and.
(3e) All Enforcement Actions of the Subordinated Collateral Trustee Senior Lien Claimholders taken by them or on their behalf shall be subject to the requirement that such Enforcement Action on the part of the Senior Lien Claimholders is commercially reasonable under the circumstances and in compliance with applicable law. All actions of the Senior Lien Claimholders shall be presumed to be commercially reasonable for all purposes hereunder unless and until a contrary determination is made by final, non-appealable order of a court of competent jurisdiction.
(f) Each Second Lien Claimholder hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Note Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Senior Lien Collateral Agent or the First Senior Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Senior Lien Note Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 and Subordination Agreement (FriendFinder Networks Inc.)
Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided that the Designated Second Lien Representative and/or the Designated Second Lien Collateral Agent may commence an Enforcement Action or otherwise exercise any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of (including i) the date on which a Second Lien Representative declared the existence of any action Event of foreclosureDefault under (and as defined in) any Second Lien Document and demanded the repayment of all the principal amount of any Second Lien Obligations thereunder; and (ii) the date on which the First Lien Representatives received notice from such Second Lien Representative of such declarations of such Event of Default and demand for payment (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall any Second Lien Representative, any Second Lien Collateral Agent or any Second Lien Secured Party exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, any First Lien Representative, any First Lien Collateral Agent or the applicable First Lien Secured Parties shall have commenced and be diligently pursuing an Enforcement Action or other exercise of their rights or remedies in each case with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Designated Second Lien Representative);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder Secured Party of any rights and remedies relating to the Collateral under the First Lien Documents or otherwiseotherwise (including any Enforcement Action initiated by or supported by any First Lien Representative, any First Lien Collateral Agent or any First Lien Secured Party); and
(3) subject to their rights under clause (a)(1) above, above will not object to the forbearance by the any First Lien Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the Liens granted any proceeds received by any First Lien Representative in excess of those necessary to secure the Subordinated achieve a Discharge of First Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described are distributed in accordance with Section 24.1.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, except that Second Lien Representatives shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien ClaimholderSecured Party; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative in excess of those necessary to achieve a Discharge of any First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described are distributed in accordance with Section 24.1 hereof. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, First Lien Collateral Agent Agents and the First Lien Claimholders Secured Parties may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party and regardless of whether any such exercise is adverse to the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders Secured Parties to exercise 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 Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Secured Party may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Obligations. The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as in connection with any foreclosure expressly provided in Sections 3.1(a), 6.3(bpermitted by Section 3.1(a)(1) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First such Second Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents Representative or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First such Second Lien Collateral Agent or and Second Lien Secured Parties represented by it are permitted to retain the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken proceeds thereof in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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.with
Appears in 1 contract
Exercise of Remedies. (a) Until Upon the Discharge occurrence and during the continuance 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 Subordinated Collateral Trustee and the Subordinated Lien ClaimholdersEvent of Default:
(1i) will not exercise at all times during the Joint Action Period, upon the Administrative Agent’s receipt of joint written instructions for an Exercise of Remedies from the Required First Out Lenders and the Required Last Out Lenders (such written instructions, the “Joint Remedies Instruction”), the Required First Out Lenders and Required Last Out Lenders shall have the right to jointly direct the Administrative Agent in writing to take one or seek to exercise any rights or remedies with respect to any Collateral more Exercise of Remedies and the Administrative Agent shall commence (including as if directed by the exercise Required Lenders), and diligently pursue in good faith, an Exercise of any right Remedies; provided that in the case an Exigent Circumstance exists, as determined by the Administrative Agent in its sole discretion, and regardless of setoff or any right under any lockbox agreementwhether a Joint Remedies Instruction has been delivered, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action Administrative Agent may pursue an Exercise of foreclosure)Remedies;
(2ii) will not contestfrom and after the time at which the Joint Action Period has ended, protest or object to any foreclosure proceeding or action brought by upon the Administrative Agent’s receipt of written instructions for an Exercise of Remedies from the Required First Lien Collateral Agent or any Out Lenders (such written instructions, the “First Lien Claimholder or any other exercise by Out Remedies Instruction” and the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations date of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the Discharge Administrative Agent’s receipt 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 Grantorsuch written instructions, the “First Lien Collateral Agent and Out Remedies Instruction Date”), the Required First Lien Claimholders Out Lenders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment direct the Administrative Agent in writing to take one or more Exercise of Remedies and the right to credit bid their debtAdministrative Agent shall commence (as if directed by the Required Lenders), on the date that is five (5) andBusiness Days after the First Out Remedies Instruction Date (the “First Out Standstill Period”), subject to Section 5.1, to make determinations regarding and diligently pursue in good faith an Exercise of Remedies; provided that (1) the release, disposition, or restrictions First Out Standstill Period shall be extended by an additional five (5) Business Days if a Committed Last Out Buy-Out Notice with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions all (but not less than all) of the First Lien Documents Out Priority Obligations has been delivered to the Administrative Agent pursuant to Section 10(a)(i) hereof during the initial five (5) Business Day period and exercise remedies thereunder, all in such order and in such manner as they may determine (2) in the exercise of their case an Exigent Circumstance exists, as determined by the Administrative Agent in its sole discretion. Such exercise and enforcement shall include , following the rights of an agent appointed receipt by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies Administrative Agent of a secured creditor under First Out Remedies Instruction, the UCC and Administrative Agent may pursue such Exercise of a secured creditor under Bankruptcy Laws Remedies immediately without giving effect to the First Out Standstill Period. The Administrative Agent shall promptly deliver each First Out Remedies Instruction from the Required First Out Lenders to the Last Out Representative.
(b) Except as otherwise expressly provided in this Agreement, Last Out Lenders shall have no right to instruct the Administrative Agent to pursue the Exercise of Remedies or to commence or pursue any applicable jurisdictionExercise of Remedies.
(c) Notwithstanding receipt by the foregoingAdministrative Agent of a Joint Remedies Instruction or a First Out Remedies Instruction delivered as provided in Section 2(a) hereof, the Subordinated Collateral Trustee obligations of the Administrative Agent under this Section 2 shall be subject to the rights and benefits of the Administrative Agent in the Credit Agreement and the other Loan Documents. The Administrative Agent, in any Subordinated case, shall not be required to pursue an Exercise of Remedies with respect to an Event of Default that has been cured or waived.
(d) The Administrative Agent shall pursue an Exercise of Remedies only at the direction of the applicable Lenders in accordance with this Agreement; provided that nothing in this Section 2 shall be construed to prohibit or limit the Administrative Agent from exercising any rights and remedies under the Loan Documents to the extent directed by (i) all Lenders or (ii) the Required First Out Lenders and Required Last Out Lenders.
(e) No Last Out Lender will take any action that would hinder, delay or otherwise interfere with any Exercise of Remedies directed by the Required First Out Lenders or, in the case of Exigent Circumstances, taken by Administrative Agent, in either case in accordance with this Agreement, or contest the priority, perfection or avoidability of any Lien Claimholder maysecuring the Obligations.
(f) Each Lender waives all rights to object to the manner that the Administrative Agent seeks the Exercise of Remedies so long as such Exercise of Remedies is otherwise in accordance with this Agreement, the Loan Documents and applicable law.
(g) Upon the occurrence and during the continuation of an Event of Default, subject to the other terms of this Agreement and notwithstanding anything contained in the Credit Agreement or any other Loan Document to the contrary, the following actions may be taken by the Administrative Agent acting at the direction of the Required First Out Lenders or the Required Last Out Lenders and such actions do not constitute the Exercise of Remedies:
(1i) file a claim legal action against any Loan Party for specific performance or statement of interest injunctive relief to compel such Loan Party to comply with respect to (or not violate or breach) any non-payment obligations under the Subordinated Lien ObligationsLoan Documents (as in effect on the date hereof); provided that such action (1) is not accompanied by a claim for monetary damages or other monetary relief, (2) is not an Insolvency action to or Liquidation Proceeding has been commenced accompanied by an action seeking to enjoin or against restrain, or seeking other equitable relief in respect of, any Collateral, including the Company disposition thereof, and (3) does not hinder, delay or otherwise interfere with any other GrantorExercise of Remedies pursuant to this Agreement;
(2ii) take any legal action within thirty (not adverse 30) days of the expiration of, and solely to the priority status extent necessary to prevent the running of, any applicable statute of limitation or similar restriction on claims under applicable law (provided that no monetary damages, other monetary relief or Proceeds of Collateral are received or retained in connection therewith in contravention of the Liens on the Collateral securing the First Lien Obligations, or the rights terms of any First Lien Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateralthis Agreement);
(3iii) file any necessary the filing of responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims Obligations, so long as such pleading is not otherwise in contravention of the Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) vote any action to assert a compulsory crossclaim or counterclaim against any Loan Party (provided that no monetary damages, other monetary relief or Proceeds of Collateral are received or retained in connection therewith in contravention of the terms of this Agreement);
(v) during an Insolvency Proceeding (1) the voting on any plan Plan, (2) the filing of reorganization, file any proof of claim, make and (3) the making of any other filings and make any or arguments and motions that are, in each casecase under this Section 2(g)(v), in accordance with and not in contravention of any of the terms of this Agreement or the Loan Documents;
(vi) any action taken in accordance with, and to enforce the terms of, any intercreditor or subordination agreement with any Person (other than a Loan Party) with respect to any indebtedness, Liens or other obligations subordinated to the Obligations (provided that (1) prior written notice of such action is provided to the Lenders, (2) no such action includes any Exercise of Remedies, (3) any payment or other property received, to the extent resulting from a payment or other transfer of property or an interest in property of a Loan Party, will be remitted to the Administrative Agent and applied to the Obligations in accordance with the terms of this Agreement, with respect to the Subordinated Lien Obligations Agreement and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive (4) any Collateral or any proceeds of Collateral other payments received in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders such action will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated Lien Obligations, such judgment Lien shall be subject to the terms of such subordination agreement with any other Person, any related intercreditor or subordination agreement with the Administrative Agent, and this Agreement Agreement);
(vii) engagement of consultants, valuation firms, investment bankers and other advisors and perform or engage third parties to perform audits, examinations and appraisals of the Collateral and not for all purposes (including purpose of marketing or conducting a disposition of such Collateral, in relation each case pursuant to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to terms of this Agreement, the Loan Documents and applicable law so long as taking any such action does not hinder, delay or otherwise interfere with the Exercise of Remedies by the Administrative Agent in any material respect; and
(viii) solicitation of bids from and/or retaining third parties in preparation of conducting any liquidation of all or a material portion of the Collateral (but not taking any further steps to actively market or to conduct any such liquidation).
(fh) Except as specifically set forth in Sections 3.1(a) Upon the occurrence and (d)during the continuation of an Event of Default pursuant to which the default rate of interest has not been automatically imposed pursuant to the Credit Agreement, nothing in this Agreement shall prohibit to the receipt by the Subordinated Collateral Trustee or extent that any Subordinated Lien Claimholders Exercise of Remedies consists of the required payments imposition of the default rate of interest, principal and other amounts owed such default rate of interest shall in respect all cases be applicable to all of the Subordinated Lien Obligations so long as Obligations, and, to the extent such receipt is not imposition occurred after the direct or indirect result time at which the Joint Action Period has ended, the Last Out Lenders will be deemed to have voted (and, at the written request of the exercise by Administrative Agent, shall so vote) in favor of such application of the Subordinated Collateral Trustee or any Subordinated Lien Claimholders default rate of rights or remedies as a secured creditor (including set-off and recoupment) 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 Collateralinterest.
Appears in 1 contract
Exercise of Remedies. (a) 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 GrantorCompany, the Subordinated Collateral Trustee Second Lien Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Lien held by them under the Second Lien Collateral Documents or any other Second Lien Loan Document or otherwise; provided, however, that the Second Lien Agents may take Enforcement Action after the passage of a period of at least 180 days has elapsed since the later of: (including i) the exercise date on which the Second Lien Agents declared the existence of any right Event of setoff Default under any Second Lien Loan Documents and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Agents received notice from the Second Lien Agents of such declarations of an Event of Default, (the “Standstill Period”); provided, further, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Agents or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder is a party) or institute take any action or proceeding Enforcement Action with respect to any Lien held by any of them under the Second Lien Collateral Documents or any other Second Lien Loan Document or otherwise if, notwithstanding the expiration of the Standstill Period, the First Lien Agents or First Lien Claimholders shall have commenced and be diligently pursuing any Enforcement Action with respect to all or any material portion of the Shared Collateral (prompt notice of such rights or remedies (including any action of foreclosureexercise to be given to the Second Lien Agents);
(2) will not contest, protest or object to any foreclosure proceeding or action Enforcement Action brought by the First Lien Collateral Agent Agents or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent Agents or any First Lien Claimholder of any rights and remedies relating to the Shared Collateral under the First Lien Loan Documents or otherwiseotherwise so long as the Liens granted to secure the Second Lien Obligations of the Second Lien Claimholders attach to the Proceeds thereof subject to the relative priorities described in Section 2; and
(3) subject to their rights under clause (a)(1) above, will not contest, protest or object to the forbearance by the First Lien Collateral Agent Agents 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 Collateral, in each case Enforcement Action so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders attach to the proceeds Proceeds thereof subject to the relative priorities described in Section 2.
(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 Grantorgrantor, subject to Section 3.1(a)(1), the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the exclusive right to enforce rightscommence, exercise remedies (including set-offand if applicable, recoupment and the right to credit bid their debt) maintain an Enforcement Action and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Shared Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Agents or any Subordinated Second Lien Claimholder; provided thatprovided, that the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds Proceeds of such Shared Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies Enforcement Actions with respect to the Shared Collateral, the First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 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 creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee Second Lien Agents and any Subordinated Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Obligations in any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other GrantorCompany;
(2) take any action (not adverse to the priority status of the Liens on the Shared Collateral securing the First Lien Obligations, or the rights of any First Lien Collateral Agent Agents or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Shared 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 Subordinated Second Lien Claimholders, including any claims secured by the Shared Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) 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 Subordinated Second Lien Obligations and the Shared Collateral;
(5) exercise any of their respective rights or remedies with respect to the Shared Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1); and
(6) exercise any rights or remedies, file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Company arising under any Insolvency Proceeding, the Bankruptcy laws or applicable non-bankruptcy law, so long as such actions would not conflict with an express agreement of the Second Lien Agents or Second Lien Claimholders contained in this Agreement; provided that in the event that any Second Lien Claimholder becomes a judgment lien creditor in respect of Shared 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) as the other Liens securing the Second Lien Obligations are subject to this Agreement. The Subordinated Collateral TrusteeEach Second Lien Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Shared Collateral or any proceeds Proceeds of Shared Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to Enforcement Action against any Shared Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any Enforcement Action expressly permitted by Section 3.1(a)(l) to the extent the Second Lien Agents and Second Lien Claimholders are permitted to retain the Proceeds thereof in accordance with Section 4.2 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b6.4(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee Second Lien Agents and the Subordinated Second Lien Claimholders with respect to the Shared Collateral is to hold a Lien on the Shared Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Loan Documents and applicable law.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b6.4(b):
(1) the Subordinated Collateral Trusteeeach Second Lien Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Collateral Trustee such Second Lien Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trusteeeach Second Lien Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent Agents or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent Agents or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee each Second Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent Agents or the First Lien Claimholders with respect to the Shared Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee Second Lien Agents and the Subordinated 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated Second Lien Claimholder becomes a judgment Lien lien creditor in respect of Shared Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated Second Lien Obligations, such judgment Lien lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Second Lien Agents or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise any Enforcement Action by the Subordinated Collateral Trustee Second Lien Agents or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 Agents or the First Lien Claimholders may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement
Exercise of Remedies. If an Event of Default exists with respect to the Seller, the Administrative Agent may, or at the direction of the Majority Buyers shall, exercise the following rights and remedies for the benefit of the Buyers:
(a) Until By written notice (which may be electronic) to the Discharge Seller (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of First Lien Obligations an Event of Insolvency of the Seller), the Repurchase Date for each Transaction hereunder, if it has not already occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1) will not exercise or seek shall be deemed immediately to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2occur.
(b) Until If the Discharge Administrative Agent exercises or is deemed to have exercised the option referred to in subsection (a) of First Lien Obligations has occurredthis Section,
(i) the Seller’s obligations in such Transactions to repurchase all Purchased Mortgage Loans, whether at the Repurchase Price therefor on the Repurchase Date determined in accordance with subsection (a) of this Section, shall thereupon become immediately due and payable, and all Income paid after such exercise or not any Insolvency or Liquidation Proceeding has been commenced deemed exercise shall be retained by or against the Company or Administrative Agent and applied to the aggregate unpaid Repurchase Price and any other Grantoramounts owed by the Seller hereunder;
(ii) to the extent permitted by applicable law, the First Lien Collateral Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount accrued by daily application of, on a 360-day per year basis for the actual number of days during the period from and including the date of the exercise or deemed exercise of such option to but excluding the date of payment of the Repurchase Price as so increased, (x) the Post-Default Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subsection (a) of this Section (decreased as of any day by (i) any amounts actually in the possession of the Administrative Agent for the benefit of the Buyers pursuant to Section 14.2, and (ii) any proceeds from the First Lien Claimholders shall have sale of Purchased Mortgage Loans applied to the exclusive right Repurchase Price pursuant to enforce rights, exercise remedies Section 14.3; and
(including set-off, recoupment and iii) all Income actually received by the right Administrative Agent for the benefit of the Buyers pursuant to credit bid their debt) and, subject Section 5 (excluding any Late Payment Fees paid pursuant to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect ) shall be applied to the Collateral without any consultation with or aggregate unpaid Repurchase Price owed by the consent of the Subordinated Collateral Trustee or any Subordinated Lien Claimholder; provided that, the Lien securing the Subordinated Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdictionSeller.
(c) Notwithstanding By written notice (which may be electronic) to the foregoingSeller, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in Repurchase Price for each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral Trustee, on behalf of itself and each Subordinated Lien Claimholder, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee and the Subordinated Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c) and Section 6.3(b):
(1) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, agrees that the Subordinated Collateral Trustee and the Subordinated Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral Trustee, for itself and on behalf of the Subordinated Lien Claimholders, hereby waives any and all rights it or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; and
(3) the Subordinated Collateral Trustee hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Document (other than this Agreement) Transaction hereunder shall be deemed to restrict in any way the rights be due and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documentspayable on each Repurchase Date therefor.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor:
(i) the Company or any other Grantor, the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Second Lien Claimholders:
(1A) from the date hereofInitial Closing Date until the occurrence of the Second Lien Enforcement Date, will not exercise or seek to exercise take any rights or remedies Enforcement Action with respect to any Lien held by it under the Second Lien Collateral (including the exercise of any right of setoff Documents or any right under any lockbox agreement, account control agreement, landlord waiver other Second Lien Document or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated Lien Claimholder is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure)otherwise;
(2B) will not contest, protest or object to to, or otherwise interfere with, hinder, or delay, any foreclosure proceeding or action brought Enforcement Action by the First Lien Collateral Agent or any First Lien Claimholder or any other exercise by Claimholder; provided that the First respective interests of the Second Lien Collateral Agent or any First Lien Claimholder of any rights and remedies relating Claimholders attach to the Collateral under proceeds thereof, subject to the First Lien Documents or otherwiserelative priorities described in Section 2 and Section 4; and
(3C) subject to their the rights of the Second Lien Agent under clause (a)(1i)(A) above, will not contest, protest or object to the forbearance by the 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders attach to the proceeds thereof Enforcement Action;
(D) subject to the relative priorities described in Section 2.
(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 Grantor5.1, the First Lien Collateral Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) commence and, subject to Section 5.1if applicable, to maintain an Enforcement Action and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Agent or any Subordinated Second Lien Claimholder; provided that:
(A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, the Second Lien Agent, on behalf of itself and the Second Lien Claimholders, may file claims or statements of interest with respect to all or any portion of the Second Lien Obligations;
(B) the Second Lien Agent, on behalf of itself and the Second Lien Claimholders, agrees that it will not retain any Collateral or any proceeds of Collateral in connection with any Enforcement Action against any Collateral, and that any Collateral or proceeds taken or received by it in connection with any Enforcement Action will be applied in accordance with Section 4.2 unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 6.8;
(C) the Second Lien Agent and 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 Agent or Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case, in accordance with the terms of this Agreement;
(D) in any Insolvency or Liquidation Proceeding, the Second Lien Agent and 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 Insolvency Law or applicable non-Insolvency Law, in each case, to the extent permitted under the terms of this Agreement;
(E) in any Insolvency or Liquidation Proceeding, the Second Lien Agent and Second Lien Claimholders shall be entitled to vote on any plan of reorganization, to the extent consistent with the provisions of this Agreement;
(F) the Second Lien Agent or any Second Lien Claimholder may exercise any of its rights or remedies with respect to the Collateral upon the occurrence and during the effective continuation of the Second Lien Enforcement Date; and
(G) the Second Lien Agent may take any action (not adverse to the Liens on the Collateral securing the Subordinated First Lien Obligations shall remain Obligations, or the rights of any First Lien Agent or the First Lien Claimholders to exercise remedies in respect thereof and not otherwise inconsistent with the terms of this Agreement) in order to preserve or protect its Lien on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2Collateral. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the provisions of the 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 the First Lien Agent and the First Lien Claimholders to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC Uniform Commercial Code of any applicable jurisdiction and the rights and remedies of a secured creditor under Bankruptcy Insolvency Laws of any applicable jurisdiction.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated The Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and or recoupment) with respect to any Collateral, and that any Collateral in its capacity as a creditoror such proceeds taken or received by it will be paid over to the First Lien Agent pursuant to Section 4.2, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 6.8. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bSection 3.1(a)(i)(A) and this the proviso to Section 3.1(c3.1(a), the sole right of the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurredoccurred in accordance with the terms of the Second Lien Documents and applicable law.
(dc) Subject to Sections 3.1(c) and the proviso of Section 6.3(b):
(1) 3.1(a), the Subordinated Collateral TrusteeSecond Lien Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that (x) the Subordinated Collateral Trustee Second Lien Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder hinder, delay or impede any exercise of remedies under the First Lien Documents or is otherwise prohibited hereunderLoan Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
, and (2y) the Subordinated Collateral TrusteeSecond Lien Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise with respect to the First Lien Collateral to object to the manner or order in which the First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is adverse to the interest of the Subordinated Lien Claimholders; andCollateral.
(3d) the Subordinated Collateral Trustee The Second Lien Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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: Supplement to Intercreditor Agreement (StoneX Group Inc.)
Exercise of Remedies. (a) Until So long as the Discharge of First Lien Revolving Facility 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, the Subordinated Collateral Trustee and the Subordinated Lien Claimholders:
(1i) neither the Term Loan Security Agent nor any of the Term Loan Secured Parties (x) will not exercise or seek to exercise any rights or remedies (including, without limitation, set-off) with respect to any Revolving Facility First Lien Collateral (including including, without limitation, the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of Revolving Facility First Lien Collateral to which the Subordinated Collateral Trustee Term Loan Security Agent or any Subordinated Lien Claimholder Term Loan Secured Party is a party) or institute or commence or join with any Person (other than the Revolving Facility Security Agent and the Revolving Facility Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution);
; provided, however, that the Term Loan Security Agent may exercise any or all such rights in accordance with the Term Loan Documents after the passage of a period of 180 days from the date of delivery of a notice in writing to the Revolving Facility Security Agent of the Term Loan Security Agent’s intention to exercise its right to take such actions (2the “Term Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the Term Loan Security Agent nor any Term Loan Secured Party will exercise any rights or remedies with respect to any Revolving Facility First Lien Collateral if, notwithstanding the expiration of the Term Standstill Period, the Revolving Facility Security Agent or Revolving Facility Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the Revolving Facility First Lien Collateral (prompt notice of such exercise to be given to the Term Loan Security Agent), (y) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Revolving Facility Security Agent or any First Lien Claimholder Revolving Facility Secured Party with respect to, or any other exercise by the First Lien Collateral Revolving Facility Security Agent or any First Lien Claimholder Revolving Facility Secured Party of any rights and remedies relating to to, the Revolving Facility First Lien Collateral under the First Lien Revolving Facility Documents or otherwise; and
, and (3z) subject to their its rights under clause (a)(1i)(x) above, will not object to the forbearance by the First Lien Collateral Revolving Facility Security Agent or the First Lien Claimholders Revolving Facility Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Revolving Facility First Lien Collateral, in each case so long as the Liens granted to secure the Subordinated Lien Obligations respective interests of the Subordinated Lien Claimholders Term Loan Secured Parties attach to the proceeds Proceeds thereof subject to the relative priorities described in Section 2.
(b3.1; provided, however, that nothing in this Section 3.2(a) Until shall be construed to authorize the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company Term Loan Security Agent or any other Grantor, the Term Loan Secured Party to sell any Revolving Facility First Lien Collateral free of the Lien of the Revolving Facility Security Agent or any Revolving Facility Secured Party; and
(ii) subject to clause (i)(x) above, the Revolving Facility Security Agent and the First Lien Claimholders Revolving Facility Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment set off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, dispositiondisposition of, or restrictions with respect to to, the Revolving Facility First Lien Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Term Loan Security Agent or any Subordinated Lien ClaimholderTerm Loan Secured Party; provided provided, that:
(1) in any Insolvency or Liquidation Proceeding commenced by or against Holdings, any Borrower or any other Grantor, the Term Loan Security Agent and any Term Loan Secured Party may file a claim or statement of interest with respect to the Revolving Facility Obligations;
(2) the Term Loan Security Agent and any Term Loan Secured Party may take any action (not adverse to the priority status of the Liens on the Revolving Facility First Lien Collateral securing the Subordinated Revolving Facility Obligations, or the rights of any Revolving Facility Security Agent or the Revolving Facility Secured Parties to exercise remedies in respect thereof) in accordance with the Term Loan Documents in order to preserve or protect its Lien Obligations shall remain on the proceeds Revolving Facility First Lien Collateral;
(3) the Term Loan 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 such Collateral released the claims of the Term Loan Secured Parties, including without limitation any claims secured by the Revolving Facility First Lien Collateral, if any, in each case in accordance with the terms of this Agreement;
(4) the Term Loan Secured Parties shall be entitled to file any pleadings, objections, motions or disposed agreements which assert rights or interests available to unsecured creditors of subject 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 to the relative priorities described extent not prohibited by any other provision of this Agreement;
(5) the Term Loan Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in Section 2an 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 Revolving Facility First Lien Collateral; and
(6) the Term Loan Security Agent or any Term Loan Secured Party may exercise any of its rights or remedies with respect to the Revolving Facility First Lien Collateral in accordance with the Term Loan Documents after the termination of the Term Standstill Period to the extent permitted by clause (i)(x) above. In Subject to clause (i)(x) above, in exercising rights and remedies with respect to the Revolving Facility First Lien Collateral, the First Lien Collateral Revolving Facility Security Agent and the First Lien Claimholders Revolving Facility Secured Parties may enforce the provisions of the First Lien Revolving Facility 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 Revolving Facility First Lien Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any other applicable jurisdictionlaw.
(cb) Notwithstanding the foregoing, the Subordinated Collateral Trustee and any Subordinated Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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, 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 Subordinated Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and
(4) 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 Subordinated Lien Obligations and the Collateral. The Subordinated Collateral TrusteeTerm Loan Security Agent, on behalf of itself and each Subordinated Lien Claimholderthe Term Loan Secured Parties, agrees that it will not take or receive any Revolving Facility First Lien Collateral or any proceeds Proceeds of Revolving Facility First Lien Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any Revolving Facility First Lien Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Revolving Facility Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 3.2(a) or in the proviso in clause (ii) of Section 3.2(a). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Revolving Facility Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(bthe first proviso in clause (i)(x) and this of Section 3.1(c3.2(a) or in the proviso in clause (ii) of Section 3.2(a), the sole right of the Subordinated Collateral Trustee Term Loan Security Agent and the Subordinated Lien Claimholders Term Loan Secured Parties with respect to the Revolving Facility First Lien Collateral is to hold a Lien on the Revolving Facility First Lien Collateral pursuant to the Subordinated Lien Collateral Term Loan 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 First Lien the Revolving Facility Obligations has occurredoccurred in accordance with the terms hereof, the Term Loan Documents and applicable law.
(dc) Subject to Sections 3.1(cthe first proviso in clause (i)(x) and of Section 6.3(b3.2(a), the proviso in clause (ii) of Section 3.2(a):
(1i) the Subordinated Collateral TrusteeTerm Loan Security Agent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Loan Secured Parties, agrees that the Subordinated Collateral Trustee Term Loan Security Agent and the Subordinated Lien Claimholders Term Loan Secured Parties will not take any action that would hinder hinder, delay, limit or prohibit any exercise of remedies under the Revolving Facility Documents with respect to the Revolving Facility First Lien Documents or is otherwise prohibited hereunderCollateral, including any collection, sale, lease, exchange, transfer or other disposition of the Revolving Facility First Lien Collateral, whether by foreclosure or otherwise;, or that would limit, invalidate, avoid or set aside any Lien or Revolving Facility Security Document with respect to the Revolving Facility First Lien Collateral or subordinate the priority of the Revolving Facility Obligations to the Term Loan Obligations with respect to the Revolving Facility First Lien Collateral or grant the Liens with respect to the Revolving Facility First Lien Collateral securing the Term Loan Obligations equal ranking to the Liens with respect to the Revolving Facility First Lien Collateral securing the Revolving Facility Obligations, and
(2ii) the Subordinated Collateral TrusteeTerm Loan Security Agent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Loan Secured Parties, hereby waives any and all rights it or the Subordinated Lien Claimholders Term Loan Secured Parties may have as a junior lien creditor with respect to the Revolving Facility First Lien Collateral or otherwise to object to the manner in which the First Lien Collateral Revolving Facility Security Agent or the First Lien Claimholders Revolving Facility Secured Parties seek to enforce or collect the First Lien Revolving Facility Obligations or the Liens securing the First Lien Obligations granted in any of the Revolving Facility First Lien Collateral undertaken in accordance with any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Revolving Facility Security Agent or First Lien Claimholders Revolving Facility Secured Parties is adverse to the interest of the Subordinated Lien Claimholders; andTerm Loan Secured Parties.
(3d) the Subordinated Collateral Trustee The Term Loan Security Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Collateral Documents or any other Subordinated Lien Term Loan Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Revolving Facility Security Agent or the First Lien Claimholders Revolving Facility Secured Parties with respect to the Revolving Facility First Lien Collateral as set forth in this Agreement and the First Lien Revolving Facility Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee and the Subordinated 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 Subordinated Lien Obligations in accordance with the terms of the Subordinated Lien Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any of the Company or any other GrantorGrantors, the Subordinated Collateral Trustee and the Subordinated Second Lien ClaimholdersSecured Parties:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral or take possession of, sell or otherwise realize (including judicially or nonjudicially) upon any of the Collateral (including, without limitation, through the notification of account debtors or the exercise of any right 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 Subordinated Collateral Trustee or any Subordinated Second Lien Claimholder Secured Party is a party) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (any such action, a “Lien Enforcement Action”); provided, however, that prior to the Discharge of First Lien Obligations with respect to the First Lien Loan Agreement as in effect on the date hereof and as it may be amended after the date hereof in accordance with the terms hereof (for the avoidance of doubt, without giving effect to Section 5.5 and subject to Section 5.3(a)(2)), whether through a Refinancing or otherwise, the Second Lien Collateral Agent may exercise any or all such rights or remedies after the passage of a period of at least 120 days has elapsed since the later of: (i) the date on which the applicable Debt Representative declares the existence of a Parity Lien Debt Default under the applicable Second Lien Documents of any Series so long as such Parity Lien Debt Default is continuing and demands the repayment of all the principal amount of the Second Lien Obligations of such Series; and (ii) the date on which the First Lien Administrative Agent receives notice from the Second Lien Collateral Agent or the applicable Debt Representative of such declaration of a Parity Lien Debt Default so long as such Parity Lien Debt Default is continuing (the “Standstill Period”); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party exercise any rights or remedies with respect to the Collateral if, notwithstanding the expiration of the Standstill Period, the First Lien Administrative Agent or any other First Lien Secured Party shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral and shall have provided notice of such exercise to the Second Lien Collateral Agent;
(2) will not contest, protest protest, hinder, delay or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder Secured Party or any other exercise by the First Lien Collateral Agent or any First Lien Claimholder Secured Party of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), except as may be permitted in Section 3.1(c), will not object to the forbearance by the First Lien Collateral Agent or the First Lien Claimholders Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; provided that, in each the case so long as of (1), (2) and (3) of this Section 3.1(a), the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Lien Claimholders shall attach to any proceeds resulting from actions taken by the proceeds thereof First Lien Administrative Agent or any other First Lien Secured Party in accordance with this Agreement subject to the relative priorities described in Section 2.
(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, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien Claimholders Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment off and the right to credit bid their debt) and, subject to Section 5.1, to and make determinations regarding the release, disposition, exercise of remedies or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee or any Subordinated Second Lien ClaimholderSecured Party; provided that, subject to Section 5.1, the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds of such Collateral released or disposed of in connection with such exercise of remedies subject to the relative priorities described in Section 22 and only to the extent such proceeds were not applied to the Discharge of First Lien Obligations. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Administrative Agent and the other First Lien Claimholders Secured Parties may enforce the provisions of the 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 right to an agent appointed by them the First Lien Administrative Agent or any other First Lien Secured Party to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or dispositionDisposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding anything to the foregoingcontrary in this Agreement, the Subordinated Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder Secured Party may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 of the First Lien Claimholders Secured Parties to exercise 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 Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Second Lien ClaimholdersSecured Parties, including any claims secured by the Collateral, if any, or otherwise make any agreements or file any motions or objections pertaining to the claims of the Second Lien Secured Parties, in each case in accordance with and not inconsistent with the terms of this Agreement; and;
(4) file any pleadings, objections, motions or agreements (x) which assert rights or interests available to unsecured creditors of the Grantors or (y) in the case of a sale or other Disposition of any Collateral free and clear of its Liens or other claims under Section 363 of the Bankruptcy Code, which assert rights or interests available to secured creditors of the Grantors, in each case arising under either any Insolvency or Liquidation Proceeding or applicable non-Bankruptcy Law, in each case not inconsistent with 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 and not inconsistent with the terms of this Agreement, with respect to the Subordinated Second Lien Obligations and the Collateral; and
(6) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1). The Subordinated Subject to Sections 3.1(a), 3.1(c) and 6.3(b), the Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated the Second Lien ClaimholderSecured Parties, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral Lien Enforcement Action in its capacity as a creditor, unless and creditor until the Discharge of First Lien Obligations has occurredshall have occurred or as otherwise expressly permitted under this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections Section 3.1(a), 6.3(b) and this Section 3.1(c) and Section 6.3(b), the sole right of the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders Secured Parties with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated Second Lien Collateral 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(a), 3.1(c) and Section 6.3(b):
(1) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, agrees that the Subordinated Collateral Trustee and the Subordinated Second Lien Claimholders Secured Parties will not take any action with respect to the Collateral that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition Disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated Second Lien ClaimholdersSecured Parties, hereby waives any and all rights it or the Subordinated Second Lien Claimholders Secured Parties may have as a junior lien creditor creditors or otherwise to object to the manner in which the First Lien Collateral Administrative Agent or the any other First Lien Claimholders Secured Parties seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or the First Lien Claimholders Secured Parties is adverse to the interest of the Subordinated Second Lien ClaimholdersSecured Parties; and
(3) the Subordinated Second Lien Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Security Documents or any other Subordinated Second Lien Note Document or Additional Parity Lien Facility Document (other than this Agreement) shall be effective to restrict or be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the First Lien Claimholders Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Loan Documents.
(e) Except as otherwise specifically set forth or referred to in Sections 3.1(a) and (dSection 3.1(d), the Subordinated Second Lien Collateral Trustee Agent and the Subordinated Second Lien Claimholders Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Note Documents, the Additional Parity Lien Facility Documents and applicable law; provided that that, in the event that any Subordinated Second Lien Claimholder Secured Party 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth Section 3.1 hereof shall not be construed to in Sections 3.1(aany way limit or impair the right of (i) any First Lien Secured Party or any Second Lien Secured Party to bid for or purchase Collateral at any private or judicial foreclosure upon such Collateral initiated by any of them and (d), nothing ii) any Second Lien Secured Party’s right to receive any remaining proceeds of Collateral after the Discharge of First Lien Obligations.
(g) Nothing in this Agreement shall prohibit the receipt by any of the Subordinated Collateral Trustee or any Subordinated Second Lien Claimholders Secured Parties of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations as set forth in the Second Lien Note Documents as in effect on this date (subject to any modifications thereto permitted pursuant to Section 5.3(b)) or in the Additional Parity Lien Facility Documents as in effect on the date on which a fully executed Parity Lien Joinder in respect of the applicable Additional Parity Lien Facility shall have been delivered in accordance with Section 5.7 (subject to any modifications thereto permitted pursuant to Section 5.3(c)), so long as as, to the extent Sections 3.1(a), 3.1(c) and 6.3(b) do not apply, such receipt is not the direct or indirect result of any Lien Enforcement Action or other enforcement in each case with respect to the exercise by the Subordinated Collateral Trustee or any Subordinated Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of them. Agreement.
(h) Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Collateral Agent or the First Lien Claimholders Secured Parties may have with respect to the First Lien Collateral.
Appears in 1 contract
Sources: Collateral Agency and Intercreditor Agreement (Mohegan Tribal Gaming Authority)
Exercise of Remedies. (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the any Company or any other Grantor, the Subordinated Collateral Trustee Second Lien Security Agent and the Subordinated Second Lien Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Collateral (including the exercise of any right 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 Subordinated Collateral Trustee Second Lien Security Agent or any Subordinated 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 Security Agent may exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (i) the date on which the Second Lien Security Agent declared the existence of any Event of Default under any Second Lien Loan Documents and demanded the repayment of all the principal amount of any Second Lien Obligations; and (ii) the date on which the First Lien Security Agent received notice from the Second Lien Security Agent of such declarations of an Event of Default, (the “Standstill Period”); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Security 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 Security Agent or First Lien Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of the Collateral (prompt notice of such exercise to be given to the Second Lien Security Agent);
(2) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Security Agent or any First Lien Claimholder or any other exercise by the First Lien Collateral Security Agent or any First Lien Claimholder of any rights and remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above, will not object to the forbearance by the First Lien Collateral Security 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 Collateral, in each case so long as the Liens granted to secure the Subordinated Second Lien Obligations of the Subordinated Second Lien Claimholders attach to the proceeds thereof subject to the relative priorities described in Section 2.
(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 any Company or any other Grantor, subject to Section 3.1(a)(1), the First Lien Collateral Security Agent and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated Collateral Trustee Second Lien Security Agent or any Subordinated Second Lien Claimholder; provided thatprovided, that the Lien securing the Subordinated Second Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Security Agent and the First Lien Claimholders may enforce the provisions of the 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 Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Collateral Trustee Second Lien Security Agent and any Subordinated Second Lien Claimholder may:
(1) file a claim one or statement more claims or statements of interest with respect to the Subordinated Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the any Company or any other Grantor;
(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 Security Agent or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect or, with respect to any Liens over Intellectual Property, 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance case, not inconsistent with the terms of this Agreement; and;
(4) 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 not inconsistent with the terms of this Agreement, with respect to the Subordinated Second Lien Obligations and the Collateral; and
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1). The Subordinated Collateral TrusteeSecond Lien Security Agent, on behalf of itself and each Subordinated the Second Lien ClaimholderClaimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Collateral in its capacity as a creditorCollateral, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent the Second Lien Security Agent and Second Lien Claimholders are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Collateral Trustee Second Lien Security Agent and the Subordinated Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and (c) and Section 6.3(b):
(1) the Subordinated Collateral TrusteeSecond Lien Security Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, agrees that the Subordinated Collateral Trustee Second Lien Security Agent and the Subordinated Second Lien Claimholders will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated Collateral TrusteeSecond Lien Security Agent, for itself and on behalf of the Subordinated Second Lien Claimholders, hereby waives any and all rights it or the Subordinated Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Security Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Security Agent or First Lien Claimholders is adverse to the interest of the Subordinated Second Lien Claimholders; and
(3) the Subordinated Collateral Trustee Second Lien Security Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Second Lien Collateral Documents or any other Subordinated Second Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Security Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
(e) Except as specifically set forth in Sections 3.1(a) and (d), the Subordinated Collateral Trustee Second Lien Security Agent and the Subordinated Second Lien Claimholders may exercise rights and remedies as unsecured creditors against the any Company or any other Grantor that has guaranteed or granted Liens to secure the Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Loan Documents and applicable law; provided that in the event that any Subordinated 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 Subordinated 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) as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing in this Agreement shall prohibit the receipt by the Subordinated Collateral Trustee Second Lien Security Agent or any Subordinated Second Lien Claimholders of the required payments of interest, principal and other amounts owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Collateral Trustee Second Lien Security Agent or any Subordinated Second Lien Claimholders of rights or remedies as a secured creditor (including set-off and recoupment) 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 Security Agent or the First Lien Claimholders may have with respect to the First Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) 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 Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated Second Lien Claimholders:
(1) will not exercise commence or maintain, or seek to commence or maintain, any Enforcement Action or otherwise exercise any rights or remedies with respect to the Collateral; provided further, that (i) if an event of default under the Second Lien Debt Documents (a “Second Lien Default”) has occurred and is continuing, Second Lien Representatives, Second Lien Collateral Agents and Second Lien Claimholders may commence or maintain, or seek to commence or maintain Enforcement Actions after the expiration of the applicable Standstill Period, (ii) in no event shall any Second Lien Representative, Second Lien Collateral (including the exercise of any right of setoff Agent or any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Collateral Trustee or any Subordinated other Second Lien Claimholder is a party) take any Enforcement Action or institute exercise any action rights or proceeding remedies with respect to such rights or remedies (including the Collateral if, notwithstanding the expiration of the Standstill Period, any action of foreclosure);
(2) will not contestFirst Lien Representative, protest or object to any foreclosure proceeding or action brought by the First Lien Collateral Agent or any First Lien Claimholder shall (A) have commenced prior to the expiration of the Standstill Period (or thereafter but prior to the commencement of any Enforcement Action by Second Lien Collateral Agent with respect to all or any other exercise by material portion of the Collateral) and be diligently pursuing in good faith an Enforcement Action with respect to all or any material portion of the Collateral or (B) be diligently attempting in good faith to vacate any stay prohibiting an Enforcement Action with respect to all or any material portion of the Collateral and (iii) prior to taking any Enforcement Action, or action to commence or petition for any Insolvency Proceeding after the end of the Standstill Period, Second Lien Collateral Agent shall give First Lien Collateral Agent not more than thirty (30) Business Days and not less than five (5) Business Days prior written notice of the intention of Second Lien Representatives, Second Lien Collateral Agents or any First other Second Lien Claimholder of any to exercise such rights and remedies, including specifying the rights and remedies relating that it intends to exercise, which notice may be sent prior to the Collateral under end of the First Lien Documents or otherwise; andStandstill Period;
(32) subject to their rights under clause (a)(1) aboveSection 3.1(a)(1), will not object to the forbearance by the First Lien Collateral Agent or the any First Lien Claimholders Claimholder from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral; and
(3) no Second Lien Representative, Second Lien Collateral Agent or Second Lien Claimholder shall file any notice or other document under the federal Assignment of Claims Act 31 U.S.C. § 3737, 41 U.S.C. § 15 that requires payment to any Second Lien Representative, Second Lien Collateral Agent or Second Lien Claimholder, in each case so long as the Liens granted to secure the Subordinated any proceeds received by any First Lien Obligations of the Subordinated Representative or First Lien Claimholders attach to the proceeds thereof subject to the relative priorities described Collateral Agent are applied in accordance with Section 24.1 and applicable law.
(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, subject to Section 3.1(a)(1), the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders shall have the sole and exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-offoff, recoupment and the right to credit bid their debt) and, except that Second Lien Claimholders shall have the credit bid rights set forth in Section 3.1(c)(6)), and subject to Section 5.1, to make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholder; provided that, the that any proceeds received by any First Lien securing the Subordinated Representative or First Lien Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the relative priorities described Agent are applied in accordance with Section 24.1 and applicable law. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Collateral, the First Lien Representatives, the First Lien Collateral Agent Agents and the First Lien Claimholders may enforce the provisions of the 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 discretiondiscretion in compliance with any applicable law and without consultation with any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent and any Subordinated other Second Lien Claimholder may:
(1) file a claim or statement of interest with respect to the Subordinated Second Lien Obligations; Obligations provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(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 Representative, any First Lien Collateral Agent or the First Lien Claimholders to exercise 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 Subordinated Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4) vote on any plan of reorganization, arrangement, compromise or liquidation, 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 Subordinated Second Lien Obligations and the Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by any Second Lien Representative, any Second Lien Collateral Agent or any other Second Lien Claimholder, may be inconsistent with the provisions of this Agreement;
(5) exercise any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(1);
(6) bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise sufficient to, and are applied to, cause the Discharge of First Lien Obligations; and
(7) exercise rights and remedies as unsecured creditors against the Company and any other Grantor in accordance with applicable law (so long as such rights and remedies do not violate and are not otherwise inconsistent with any provision of this Agreement). The Subordinated Each Second Lien Representative and each Second Lien Collateral TrusteeAgent, on behalf of itself and each Subordinated other Second Lien ClaimholderClaimholder represented by it, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off off and recoupment) with respect to any Collateral in its capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1) to the extent such Second Lien Representative or such Second Lien Collateral Agent and Second Lien Claimholders represented by it are permitted to retain the proceeds thereof in accordance with Section 4.2 of this Agreement and applicable law. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Second Lien Representatives, the Second Lien Collateral Trustee Agents and the Subordinated other Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Subordinated 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 First Lien Obligations has occurred.
(d) Subject to Sections 3.1(c3.1(a) and Section 6.3(b3.1(c):
(1) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, agrees that the Subordinated such Second Lien Representative or such Second Lien Collateral Trustee Agent and the Subordinated such Second Lien Claimholders represented by it will not take any action that would hinder any exercise of remedies under the First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise;
(2) the Subordinated each Second Lien Representative and each Second Lien Collateral TrusteeAgent, for itself and on behalf of the Subordinated each other Second Lien ClaimholdersClaimholder represented by it, hereby waives any and all rights it such Second Lien Representative or the Subordinated such Second Lien Collateral Agent and such Second Lien Claimholders represented by it may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders seek Claimholder seeks to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholders Claimholder is adverse to the interest of the Subordinated any Second Lien ClaimholdersClaimholder; and
(3) the Subordinated each Second Lien Representative and each Second Lien Collateral Trustee Agent, for itself and on behalf of each other Second Lien Claimholder represented by it, hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated any Second Lien Collateral Documents or any other Subordinated Lien Debt Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder with respect to the Collateral as set forth in this Agreement and the First Lien DocumentsAgreement.
(e) Except as specifically set forth in Sections 3.1(a) and (d)The Second Lien Representatives, the Subordinated Second Lien Collateral Trustee Agents and the Subordinated other 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 Subordinated Second Lien Obligations in accordance with the terms of the Subordinated Second Lien Debt Documents and applicable lawlaw (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor); provided that in the event that any Subordinated 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 Subordinated 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) in the same manner as the other Liens securing the Subordinated Second Lien Obligations are subject to this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d3.1(b), nothing in this Agreement shall prohibit the receipt by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of the required payments of interest, principal and other amounts Permitted Subordinated Indebtedness Payments owed in respect of the Subordinated Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated any Second Lien Representative, any Second Lien Collateral Trustee Agent or any Subordinated other Second Lien Claimholders Claimholder of rights or remedies as a secured creditor (including set-off off and recoupment) or enforcement in contravention of this Agreement of any Lien held by any of themthem in respect of the Collateral or as a result of any other violation by any Second Lien Claimholder of the express terms of this Agreement; provided that upon commencement of any Insolvency or Liquidation Proceeding any payments with respect to the Second Lien Obligations will not be made. Nothing in this Agreement impairs or otherwise adversely affects affects any rights or remedies the any First Lien Representative, any First Lien Collateral Agent or the any other First Lien Claimholders Claimholder may have with respect to the First Lien Collateral.
Appears in 1 contract
Exercise of Remedies. (a) Until the Discharge of First Lien Revolving Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Subordinated Term Collateral Trustee Agent and the Subordinated Lien ClaimholdersTerm Secured Parties:
(1i) will not exercise or seek to exercise any rights or remedies with respect to any ABL Collateral subject to any Revolving Lien (including the exercise of any right 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 Subordinated Term Collateral Trustee Agent or any Subordinated Lien Claimholder Term Secured Party 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 Term Collateral Agent or any Term Secured Party may exercise any or all such rights or remedies after a period of 180 days has elapsed since the first date on which the Term Collateral Agent shall have (A) declared the existence of any Event of Default under the Term Documents, (B) demanded the repayment of all the principal amount of the Term Obligations and (C) notified the Revolving Collateral Agent of such declaration of an Event of Default and demand (the “Standstill Period”); provided further, however, that notwithstanding anything herein to the contrary, in no event shall the Term Collateral Agent or any Term Secured Party exercise any rights or remedies with respect to any ABL Collateral subject to any Revolving Lien, notwithstanding the expiration of the Standstill Period, if the Revolving Collateral Agent or Revolving Secured Parties shall have commenced and be diligently pursuing the exercise of rights or remedies with respect to all or any material portion of such ABL Collateral (prompt notice of such exercise to be given to the Term Collateral Agent); provided further, however, that the parties hereto acknowledge and agree that this Section 3.1(a)(i) shall not in any way prohibit the Term Collateral Agent or any Term Secured Party from exercising any of its rights during an Insolvency or Liquidation Proceeding to the extent permitted by the other provisions hereof;
(2ii) subject to Section 2.1(c), will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Revolving Collateral Agent or any First Lien Claimholder Revolving Secured Party or any other exercise by the First Lien Revolving Collateral Agent or any First Lien Claimholder Revolving Secured Party of any rights and remedies relating to the Collateral any ABL Collateral, whether under the First Lien applicable Revolving Documents or otherwise; and
(3iii) subject to their rights under clause (a)(1a)(i) aboveabove and except as may be permitted in Section 3.1(c), will not object to the forbearance by the First Lien Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateralany ABL Collateral subject to any Revolving Lien; provided that, in each the case so long as of clauses (i), (ii) and (iii) above, the Liens granted on the ABL Collateral to secure the Subordinated Lien Term Obligations of the Subordinated Lien Claimholders shall attach to any Proceeds resulting from actions taken by the proceeds thereof subject Revolving Collateral Agent or any Revolving Secured Party in accordance with this Agreement after application of such Proceeds to the relative priorities described in Section 2extent necessary to meet the requirements of a Discharge of Revolving Obligations.
(b) Until Subject to the terms and conditions of this Agreement, until the Discharge of First Lien Revolving Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, subject to Section 3.1(a)(i), the First Lien Revolving Collateral Agent and the First Lien Claimholders Revolving Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including the exercise of any right of set-off, recoupment any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement and the right to credit bid their debt) and, subject to Section 5.1in the course of such exercise, to make related determinations regarding the release, disposition, disposition or restrictions with respect to the any ABL Collateral subject to Revolving Liens without any consultation with or the consent of the Subordinated Term Collateral Trustee Agent or any Subordinated Lien ClaimholderTerm Secured Party; provided that, that the Lien Liens on any ABL Collateral securing the Subordinated Lien any Term Obligations shall remain on the proceeds Proceeds of such Collateral so released or disposed of of, subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the CollateralABL Collateral subject to the Revolving Liens, the First Lien Revolving Collateral Agent and the First Lien Claimholders each Revolving Secured Party may enforce the provisions of the First Lien applicable Revolving 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 of such ABL 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 creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(c) Notwithstanding the foregoing, the Subordinated Term Collateral Trustee Agent and any Subordinated Lien Claimholder Term Secured Party may:
(1i) file a claim or statement of interest with respect to the Subordinated Lien applicable Term Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor;
(2ii) take any action (not adverse to the priority status of the any Revolving Liens on the ABL Collateral securing the First Lien Obligations, or the rights of any First Lien the Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien Term Liens on the ABL Collateral;
(3iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Lien ClaimholdersTerm Secured Parties, including any claims secured by the ABL Collateral, if any, in each case in accordance with the terms of this Agreement; and;
(4iv) file any pleadings, objections, motions or agreements to assert rights or interests that are available to unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or any applicable law and that, in each case, are not inconsistent with the terms of this Agreement;
(v) 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 Subordinated Lien Term Obligations and the Collateral; and
(vi) exercise any of its rights or remedies with respect to the ABL Collateral after the termination of the Standstill Period to the extent permitted by Section 3.1(a)(i). The Subordinated Term Collateral TrusteeAgent, on behalf of itself and each Subordinated Lien Claimholderthe Term Secured Parties, agrees that it will not take or receive any ABL Collateral subject to any Revolving Lien or any proceeds Proceeds of any such ABL Collateral in connection with the exercise of any right or remedy (including set-off and recoupmentoff) with respect to any such ABL Collateral in its capacity as a creditor, unless and until the Discharge creditor in violation of First Lien Obligations has occurredthis Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Revolving Obligations has occurred, except as expressly provided in Sections Section 3.1(a), Section 6.3(b) and this Section 3.1(c), the sole right of the Subordinated Term Collateral Trustee Agent and the Subordinated Lien Claimholders Term Secured Parties with respect to the any ABL Collateral subject to any Revolving Lien is to hold a Lien on the such ABL Collateral pursuant to the Subordinated Lien applicable Term Collateral 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 First Lien Revolving Obligations has occurred.
(d) Subject to Sections 3.1(a), 3.1(c) and Section 6.3(b):
(1i) the Subordinated Term Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Secured Parties, agrees that the Subordinated Collateral Trustee it and the Subordinated Lien Claimholders Term Secured Parties will not take any action that would hinder or delay any exercise of remedies with respect to the ABL Collateral under the First Lien applicable Revolving Documents or is the realization of the full value of any ABL Collateral in which the Revolving Collateral Agent has Liens or would otherwise be prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateralany ABL Collateral subject to any Revolving Lien, whether by foreclosure or otherwise;
(2ii) the Subordinated Term Collateral TrusteeAgent, for itself and on behalf of the Subordinated Lien ClaimholdersTerm Secured Parties, hereby waives any and all rights it or the Subordinated Lien Claimholders Term Secured Parties may have as a junior lien creditor creditors or otherwise to object to the manner in which the First Lien Revolving Collateral Agent or the First Lien Claimholders seek any Revolving Secured Party seeks to enforce or collect realize on the First Lien Obligations or Revolving Liens on the Liens securing the First Lien Obligations granted in any of the First Lien ABL Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Revolving Collateral Agent or First Lien Claimholders such Revolving Secured Party is adverse to the interest interests of the Subordinated Lien ClaimholdersTerm Secured Parties; and
(3iii) the Subordinated Term Collateral Trustee Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Subordinated Lien Term Collateral Documents or any other Subordinated Lien Term Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party with respect to the ABL Collateral subject to their Revolving Liens as set forth in this Agreement and the First Lien Revolving Documents.
(e) Except as otherwise specifically set forth in Sections 3.1(a) and (d3.1(d), the Subordinated Term Collateral Trustee Agent and the Subordinated Lien Claimholders Term Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor Person that has guaranteed or granted Liens to secure the Subordinated Lien Term Obligations in accordance with the terms of the Subordinated Lien Term Documents and applicable law; provided that in the event that any Subordinated Lien Claimholder Term Secured Party becomes a judgment Lien creditor in respect of any ABL Collateral subject to any Revolving Lien as a result of its enforcement of its rights as an unsecured creditor with respect to the Subordinated Lien applicable Term Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Subordinated Lien Obligations are subject to of this Agreement.
(f) Except as specifically set forth in Sections 3.1(a) and (d), nothing Nothing in this Agreement shall prohibit the receipt by the Subordinated Term Collateral Trustee Agent or any Subordinated Lien Claimholders Term Secured Party of the required or permitted payments of interest, principal and other amounts owed in respect of the Subordinated Lien applicable Term Obligations so long as such receipt is not the direct or indirect result of the exercise by the Subordinated Term Collateral Trustee Agent or any Subordinated Lien Claimholders Term Secured Party of rights or remedies against the ABL Collateral as a secured creditor (including set-off and recoupmentoff) or enforcement in contravention of this Agreement of any Term Lien on ABL Collateral held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Revolving Collateral Agent or the First Lien Claimholders any Revolving Secured Party may have with respect to the First Lien Collateralany ABL Collateral subject to its Revolving Liens.
Appears in 1 contract