Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. (b) Notwithstanding paragraph (a) of this Section: (i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral Agent; (ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and (iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.
Appears in 2 contracts
Sources: Indenture (Bloom Energy Corp), Indenture (Bloom Energy Corp)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) So long as the Discharge of this SectionFirst Lien Obligations has not occurred, Section 2.01(b) whether or not any Insolvency Proceeding has been commenced, the First Lien Administrative Agent and Section 4.01(a), nothing in this Agreement the other First Lien Secured Parties shall affect have the ability of any Secured Party (i) exclusive right to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, (including any right of set-off and any setoff) with respect to the Collateral (including making determinations regarding the release of Liens onDisposition (and, to the extent provided in Section 3.04, any Release in connection therewith) with respect to the Collateral), or any sale, transfer to commence or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), in each case, without any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to consultation with or the provisions consent of the applicable Credit Documents Second Lien Administrative Agent or Notes Documentsany other Second Lien Secured Party; provided that, determine in its sole discretion. In addition, notwithstanding the foregoing,
(Ai) in any Insolvency or Liquidation Proceeding commenced by or against Proceeding, the Second Lien Administrative Agent and any Grantor, each Second Lien Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations theretoSecond Lien Obligations;
(ii) the Second Lien Administrative Agent may take any action to create, perfect, preserve or protect the validity and enforceability of the Second Priority Liens (but not actually enforce the Second Priority Liens), provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights and remedies of the First Lien Administrative Agent or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Section 3.04;
(iii) the Second Lien Secured Party Parties may file any necessary responsive or appropriate responsive defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading filed made by any Person objecting to or otherwise seeking the disallowance of the claim claims of the Second Lien Secured Parties, including any claims secured by the Collateral or Lien of Secured Party, (C) each Secured Party may otherwise make any agreements or file any pleadingsmotions or pleadings pertaining to the Second Lien Obligations, objectionsin each case, motions, in a manner (A) that could not reasonably be expected to be adverse to the First Priority Liens or agreements which assert the rights available to unsecured creditors and remedies of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, the First Lien Administrative Agent and (DB) each not otherwise inconsistent with the terms of this Agreement;
(iv) the Second Lien Secured Party Parties may exercise rights and remedies as unsecured creditors, subject to the terms of and in accordance with this Agreement, including as provided in Section 3.03;
(v) the Second Lien Secured Parties may (A) 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 (B) credit bid for Collateral pursuant to Section 363(k) of the Bankruptcy Code (provided that such credit bid may only be made if the Discharge of First Lien Obligations has occurred or will occur concurrently as a result of a cash bid for such Collateral in addition to such credit bid); provided, however, in no event shall the bid pursuant to this Section 3.01(a)(v) be less than the amount in cash that would be necessary to purchase the First Lien Obligations pursuant to Section 3.01(d) hereof;
(vi) the Second Lien Secured Parties shall be entitled to vote on any plan of reorganization reorganization, to the extent consistent with the provisions hereof; and
(vii) subject to Section 3.02(a), the Second Lien Administrative Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period. (the actions described in any Insolvency or Liquidation Proceeding of any Grantor, in each case clauses (Ai) through (Dvii) above being referred to herein as the “Second Lien Permitted Actions”). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Administrative Agent and the other Second Lien Secured Parties with respect to the Collateral shall be to receive the proceeds of the Collateral, if any, remaining after the Discharge of First Lien Obligations has occurred, to the extent such action is not inconsistent withof the Second Lien Obligations, or could not result and in a resolution inconsistent with, accordance with the terms of this AgreementSecond Lien Loan Documents and applicable law.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to the Collateral, the First Lien Administrative Agent and the other First Lien 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 their sole and absolute discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any Common Collateral by such Collateral AgentDisposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, such Collateral the Bankruptcy Code or any other Bankruptcy Law. The First Lien Administrative Agent shall agrees to provide at least three (3) Business Days’ prior written notice thereof to the other Collateral Second Lien Administrative Agent of its intention to foreclose upon or Dispose of any Collateral.
(c) The Second Lien Administrative Agent, such notice to be provided as far in advance for itself and on behalf of such commencement as reasonably practicable, and shall regularly inform 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 Loan Document shall be deemed to restrict in any way the rights and remedies of the First Lien Administrative Agent or the other First Lien Secured Parties with respect to the Collateral Agent as set forth in this Agreement and the other First Lien Loan Documents.
(d) Notwithstanding anything in this Agreement to the contrary, following the earliest to occur of developments in connection with such enforcement (i) the acceleration of the Obligations then outstanding under the First Lien Credit Agreement, (ii) a First Lien Payment Default that has not been cured or exercise; and
waived by the First Lien Lenders within sixty (60) days of the occurrence thereof or (iii) subject the commencement of an Insolvency Proceeding, the Second Lien Secured Parties may, at their sole expense and effort, upon notice within thirty (30) days following such acceleration, payment default or the commencement of an Insolvency Proceeding, as the case may be, to the terms First Lien Administrative Agent and conditions the Company, require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties, without warranty or representation or recourse (except for representations and warranties required to be made by assigning lenders pursuant to the Assignment and Acceptance (as such term is defined in the First Lien Credit Agreement), all (but not less than all) of the applicable Credit Documents First Lien Obligations; provided that (x) such assignment shall not conflict with any law, rule or Notes Documentsregulation or order of any court or other Governmental Authority having jurisdiction, each Collateral Agent agrees that it and (y) the Second Lien Secured Parties shall cooperate have paid to the First Lien Administrative Agent, for the account of the First Lien Secured Parties, in a commercially reasonable manner with immediately available funds, an amount equal to 100% of the outstanding principal of the First Lien Obligations, plus all accrued and unpaid interest thereon plus all accrued and unpaid fees plus all other Collateral Agent in any enforcement of rights or any exercise of remedies First Lien Obligations then outstanding (which shall include, with respect to (i) the aggregate face amount of the letters of credit outstanding under the First Lien Credit Agreement, an amount in cash equal to 105% thereof, and (ii) obligations under any Common CollateralLender Swap Agreement that constitute First Lien Obligations, 100% of the aggregate Swap Obligations then due and owing thereunder). In addition, such purchasers shall have the right to assume any Lender Swap Agreement that has not been terminated by payment to the Swap Counterparty thereunder of an amount equal to 100% of the ▇▇▇▇-to-market value thereof, plus any Swap Obligations with respect thereto. In order to effectuate the foregoing, the First Lien Administrative Agent shall calculate, upon the written request of the Second Lien Administrative Agent from time to time, the amount in cash that would be necessary so to purchase the First Lien Obligations. Notwithstanding the foregoing, the First Lien Administrative Agent and the First Lien Secured Parties shall retain any and all rights with respect to indemnification and other similar contingent obligations under the First Lien Loan Documents or any Lender Swap Agreement that are expressly stated to survive the termination of the First Lien Loan Documents or any Lender Swap Agreement. To exercise the foregoing purchase option, the Second Lien Administrative Agent shall, at the written direction of the Offerors, deliver a written notice to the First Lien Administrative Agent, on behalf of itself and the First Lien Secured Parties, which notice shall, subject to clause (e) of this Section 3.01, be deemed an irrevocable offer to the First Lien Secured Parties by such Offerors to purchase the First Lien Obligations on the terms set forth in this Section (the “Purchase Notice”). The parties shall close within twenty (20) Business Days after receipt of such Purchase Notice by the First Lien Administrative Agent (such period referred to as the “Purchase Period”). The Second Lien Administrative Agent shall endeavor to provide notice to the Company of such purchase promptly upon such closing; provided, however, the failure to give such notice shall not create any claim or cause of action on the part of the Company against the Second Lien Administrative Agent or any other party hereto for failing to give such notice for any reason whatsoever. Upon any such purchase, the First Lien Administrative Agent shall, upon the request of the purchasers of the First Lien Obligations, resign immediately as First Lien Administrative Agent, and such purchasers may elect or appoint a successor agent in accordance with the terms of the First Lien Loan Documents.
(e) If the First Lien Administrative Agent or a First Lien Secured Party commences or continues any Enforcement Action in respect of any First Lien Collateral during a Purchase Period, and if the Second Lien Secured Parties who gave the Purchase Notice (the “Offerors”) decide, in the exercise of their reasonable good faith judgment that such Enforcement Action will have or could reasonably be expected to have an adverse effect on the Collateral or on the value to the Offerors of the proposed purchase transaction, the Offerors may, by notice to the First Lien Administrative Agent, revoke their offer to purchase the First Lien Obligations, and in such case the Offerors shall have no further obligation to any First Lien Secured Party in respect of such offer.
(f) In furtherance of the foregoing Section 3.01(d), the First Lien Administrative Agent shall endeavor to deliver notice to the Second Lien Administrative Agent of any payment default under the First Lien Credit Agreement; provided that the First Lien Administrative Agent’s failure to give such notice under this Section 3.01(f) shall not create any claim or cause of action on the part of any Second Lien Secured Party against the First Lien Administrative Agent for any reason whatsoever.
Appears in 2 contracts
Sources: Credit Agreement (Quintana Energy Services Inc.), Credit Agreement (Quintana Energy Services Inc.)
Exercise of Rights and Remedies. (a) Subject to paragraph paragraphs (b) and (c) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph paragraphs (b) and (c) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Collateral Agent or any of its Related Secured Party Parties may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Collateral Agent or its Related Secured Party Parties may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Collateral Agent or Related Secured Party, (C) each Collateral Agent or its Related Secured Party Parties may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Borrower or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and (D) each Collateral Agent and its Related Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of such Collateral AgentAgent or its Related Secured Parties;
(ii) each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral AgentAgent or any of its Related Secured Parties, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the each other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable each Collateral Agent’s Related Secured Credit Documents or Notes Documents, each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that it such Collateral Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with the each other Collateral Agent and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral; provided, however, that nothing in this section shall require any Collateral Agent to cooperate with any other Collateral Agent if it has not received the appropriate or necessary consents, waivers, direction or indemnity from its Related Secured Parties.
(c) Notwithstanding anything otherwise to the contrary herein, to the extent provided in the Senior Secured Notes Documents or the Additional First Lien Obligations Documents with respect to any Pari Passu Lien Indebtedness for which the Notes Collateral Agent is also acting as collateral agent, the Notes Collateral Agent will be permitted to exercise remedies and sell the Collateral under the Security Documents only at the direction of the agents or representatives (including the Senior Secured Notes Trustee in the case of the Senior Secured Notes Secured Parties) who are authorized to act on behalf of the Senior Secured Notes Secured Parties or the Additional Secured Parties for which the Notes Collateral Agent is acting as collateral agent, as applicable, or at the direction of the holders of a majority in the principal amount of the outstanding Senior Secured Notes Obligations and any outstanding Additional First Lien Obligations for which the Collateral Agent is acting as collateral agent voting as a single class.
Appears in 2 contracts
Sources: Intercreditor and Collateral Agency Agreement (APX Group Holdings, Inc.), Intercreditor and Collateral Agency Agreement (Olympic-Cascade Publishing, Inc.)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) 2.01 and Section 4.01(a)4.01, nothing in this Agreement shall affect the ability of any Secured Party (i) to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a)4.01, any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.
Appears in 1 contract
Sources: Indenture (Bloom Energy Corp)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) So long as the Discharge of this SectionFirst Lien Obligations has not occurred, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document whether or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, (A) in not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the First Lien Administrative Agent and the other First Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies (including any right of setoff) with respect to any of the Collateral (including any foreclosure action or proceeding), in each case, with notice to the Second Lien Administrative Agent as set forth in clause (b) below but without any consultation with or the consent of the Second Lien Administrative Agent or any other Second Lien Secured Party Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, the Second Lien Administrative Agent may file a proof of claim or statement of interest with respect to the applicable obligations thereto, Second Lien Obligations; (Bii) the Second Lien Administrative Agent may take any action not otherwise in any Insolvency conflict with this Agreement to preserve or Liquidation Proceeding commenced by or against any Grantor, each protect the validity and enforceability of the Second Priority Liens; (iii) the Second Lien Secured Party Parties may file any necessary responsive or appropriate responsive defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading filed made by any Person objecting to or otherwise seeking the disallowance of the claim claims of the Second Lien Secured Parties, including any claims secured by the Collateral, or Lien of Secured Party, (C) each Secured Party may otherwise make any agreements or file any pleadings, objections, motions, or agreements which assert rights available motions pertaining to unsecured creditors of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantorthe Second Lien Obligations, in each case (A) through (D) above case, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, with the terms of this Agreement; (iv) the Second Lien Secured Parties may exercise rights and remedies that may be exercised by unsecured creditors except to the extent in conflict with Article VI; (v) the Lien securing the Second Lien Obligations shall remain on and attach to any proceeds of Collateral released or disposed of in accordance with this Agreement subject to the relative priorities described in Article II; and (vi) subject to Section 3.02, the Second Lien Administrative Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the "SECOND LIEN PERMITTED ACTIONS"). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Administrative Agent and the other Second Lien Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Collateral, if any, in accordance with the Second Lien Credit Documents and applicable law, after the Discharge of First Lien Obligations has occurred.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common of the Collateral, the First Lien Administrative Agent and the other First Lien Secured Parties 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 their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral by upon foreclosure, to incur reasonable expenses in connection with any such Collateral AgentDisposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, such Collateral the Bankruptcy Code or any other Bankruptcy Law or any other applicable law. Unless an Insolvency and Liquidation Proceeding has commenced and is continuing, the First Lien Administrative Agent shall agrees to provide at least ten days' prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Second Lien Administrative Agent of developments in connection its intention to enforce its rights or exercise remedies (including any right of setoff) with respect to the Collateral, prior to any such enforcement or exercise; and
(iii) subject . In the event that during such ten day period, the Second Lien Administrative Agent shall send to the terms and conditions First Lien Secured Parties the irrevocable notice of the applicable Credit Documents Purchasing Parties' intention to exercise their purchase option pursuant to Section 7.05(a), the First Lien Administrative Agent shall not commence any foreclosure or Notes Documents, each Collateral Agent agrees other action to sell or otherwise realize upon the Collateral; provided that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies purchase and sale with respect to the First Lien Obligations provided for in Section 7.05 shall have closed within ten Business Days thereafter and the First Lien Administrative Agent shall have received payment in full of the purchase price and any Common Collateralcash collateral as provided for herein within such ten Business Day period.
(c) The Second Lien Administrative 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 Credit Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Administrative Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the First Lien Credit Documents.
Appears in 1 contract
Sources: Intercreditor Agreement (Werner Holding Co Inc /Pa/)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this SectionNotwithstanding Section 2.01, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) only the Applicable Collateral Agent shall act or refrain from acting with respect to Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral), (ii) the Applicable Collateral Agent shall act only on the instructions of the Applicable Representative and shall not follow any instructions with respect to such Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Representative (or any other Second Lien Claimholder other than the Applicable Representative) and (iii) no Other Second Lien Claimholder shall or shall instruct any Second Lien Collateral Agent to, and any other Second Lien Collateral Agent that is not the Applicable Collateral Agent shall not, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any rights and other action available to it in respect of, Shared Collateral (including with respect to any other intercreditor agreement with respect to Shared Collateral), whether under any Second Lien Collateral Document (other than the Second Lien Collateral Documents applicable to the Applicable Collateral Agent), applicable law or otherwise, it being agreed that only the Applicable Collateral Agent, acting in accordance with the Second Lien Collateral Documents applicable to it, shall be entitled to take any such actions or exercise any remedies with respect to any Common such Shared Collateral available under any Credit Document, any Notes Document or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to at such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding)time. Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions Without limitation of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In additionforegoing, (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Secured Party Second Lien Collateral Agent or any of its Related Second Lien Claimholders may file a proof of claim or statement of interest with respect to the applicable obligations Second Lien Obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Secured Party Second Lien Collateral Agent or its Related Second Lien Claimholders may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Partysuch Second Lien Collateral Agent or Related Second Lien Claimholder, (C) each Secured Party Second Lien Collateral Agent or its Related Second Lien Claimholders may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Company or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy non-bankruptcy law, and (D) each Secured Party Second Lien Collateral Agent and its Related Second Lien Claimholders may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Company or any other Grantor, in each case of clause (A) through (D) above above, to the extent such action is not prohibited by or inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Summit Midstream Partners, LP)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) So long as the Discharge of this SectionFirst Lien Indebtedness has not occurred, Section 2.01(b) whether or not any Insolvency or Liquidation Proceeding has been commenced, the First Lien Administrative Agent and Section 4.01(a), nothing in this Agreement the other First Lien Secured Parties shall affect have the ability of any Secured Party (i) right to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, (including any right of set-off and any determinations regarding setoff) with respect to the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights to commence or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), in each case, without any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to consultation with or the provisions consent of the applicable Credit Documents Second Lien Administrative Agent or Notes Documentsany other Second Lien Secured Party; provided that, determine in its sole discretion. In additionnotwithstanding the foregoing, (Ai) in any Insolvency or Liquidation Proceeding commenced by or against any GrantorProceeding, each Secured Party the Second Lien Administrative Agent may file a proof of claim or statement of interest with respect to the applicable obligations theretoSecond Lien Indebtedness; (ii) the Second Lien Administrative Agent may take any action to preserve or protect the validity and enforceability of the Second Priority Liens, provided that no such action is, or could reasonably be expected to be, inconsistent with the terms of this Agreement; (Biii) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each the Second Lien Secured Party Parties may file any necessary responsive or appropriate responsive defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading filed made by any Person person objecting to or otherwise seeking the disallowance of the claim claims of the Second Lien Secured Parties, including any claims secured by the Collateral or Lien of Secured Party, (C) each Secured Party may otherwise make any agreements or file any pleadings, objections, motions, or agreements which assert rights available motions pertaining to unsecured creditors of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantorthe Second Lien Indebtedness, in each case (A) through (D) above case, to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, with the terms of this Agreement; (iv) the Second Lien Secured Parties may exercise rights and remedies as unsecured creditors, as provided in Section 3.3; and (v) subject to Section 3.2(a), the Second Lien Administrative Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the “Second Lien Permitted Actions”). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Indebtedness has occurred, the sole right of the Second Lien Administrative Agent and the other Second Lien Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Collateral, if any, after the Discharge of First Lien Indebtedness has occurred and in accordance with the Second Lien Loan Documents and applicable law.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject toSubject to Section 7.3, in exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to the Collateral, the First Lien Administrative Agent and the other First Lien 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 their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any Common Collateral by such Collateral AgentDisposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, such Collateral the Bankruptcy Code or any other Bankruptcy Law. The First Lien Administrative Agent shall agrees to provide at least 10 days’ prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Second Lien Administrative Agent of developments in connection with such enforcement its intention to foreclose upon or exercise; and
(iii) subject to the terms and conditions Dispose of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.
Appears in 1 contract
Exercise of Rights and Remedies. (a) Subject to paragraph (b) So long as the Discharge of this SectionFirst Lien Obligations has not occurred, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document whether or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or not any Insolvency or Liquidation Proceeding). Subject Proceeding has been commenced, the First Lien Collateral Agent and the other First Lien Secured Parties shall have the exclusive right to paragraph (b) of this Section and Section 4.01(a)all Enforcement Actions, in each case, without any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to consultation with or the provisions consent of the applicable Credit Documents Second Lien Collateral Agent or Notes Documentsany other Second Lien Secured Party; provided that, determine in its sole discretion. In additionnotwithstanding the foregoing, (Ai) in any Insolvency or Liquidation Proceeding commenced by or against any GrantorProceeding, each Secured Party the Second Lien Collateral Agent may file a proof of claim or statement of interest with respect to the applicable obligations theretoSecond Lien Obligations, (ii) the Second Lien Collateral Agent may take any action to create, perfect, preserve or protect the validity and enforceability of the Second Priority Guaranty Liens; provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Guaranty Liens provided in any Insolvency or Liquidation Proceeding commenced by or against any GrantorSection 3.05, each (iii) the Second Lien Secured Party Parties may file any necessary responsive or appropriate responsive defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading filed made by any Person person objecting to or otherwise seeking the disallowance of the claim claims of the Second Lien Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Lien Obligations, in each case, to the extent not inconsistent with the terms of Secured Partythis Agreement, (Civ) each the Second Lien Secured Party Parties may file any pleadingsexercise rights and remedies as unsecured creditors, objectionsas provided in Section 3.04, motions, or agreements which assert rights available to unsecured creditors of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and (Dv) each Secured Party may vote on any plan of reorganization in reorganization, make other filings, and make any Insolvency or Liquidation Proceeding of any Grantorarguments and motions that are, in each case (A) through (D) above to the extent such action is not inconsistent withcase, or could not result in a resolution inconsistent with, accordance with the terms of this AgreementAgreement with respect to the Second Priority Guaranty Liens, (vi) bid for or purchase Collateral at any private or judicial foreclosure sale or sale upon such Collateral, in each instance, initiated by the First Lien Secured Parties, (vii) hold a Lien on the Collateral pursuant to the Second Lien Collateral Documents for the period and to the extent granted therein and (viii) subject to Section 3.03(a), the Second Lien Collateral Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the "Second Lien Permitted Actions"). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Collateral Agent and the other Second Lien Secured Parties with respect to the Collateral shall be to receive proceeds of the Collateral, if any, after the Discharge of First Lien Obligations has occurred and in accordance with the Second Lien Loan Documents and applicable law.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agentthe Collateral, such the First Lien Collateral Agent and the other First Lien 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 their sole discretion and in accordance with the First Lien Loan Documents and applicable law. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The First Lien Collateral Agent agrees to provide at least five days' prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Second Lien Collateral Agent of developments in connection with such enforcement its intention to foreclose upon or exercise; and
(iii) subject to the terms and conditions Dispose of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Pacific Energy Resources LTD)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law Law, or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of such Collateral AgentAgent or its Related Secured Parties;
(ii) each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral AgentAgent or any of its Related Secured Parties, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the each other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable each Collateral Agent’s Related Secured Credit Documents or Notes Documents, each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that it such Collateral Agent and its Related Secured Parties, to the extent requested by the other Collateral Agent, shall cooperate in a commercially reasonable manner with the each other Collateral Agent and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral; provided, however, that nothing in this section shall require any Collateral Agent to cooperate with any other Collateral Agent if it has not received the appropriate or necessary consents, waivers, direction or indemnity from its Related Secured Parties.
Appears in 1 contract
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law Law, or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In additionexercising any such rights or remedies, the Initial Collateral Agent shall act in accordance with any instructions given to it (Ai) in any Insolvency prior to the termination of the Standstill Period, by the Administrative Agent and (ii) after the termination of the Standstill Period, by the first of either the Administrative Agent or Liquidation Proceeding commenced the Indenture Trustee to give such instructions, it being understood that the instructions given by or against any Grantor, each Secured Party may file a proof one such Authorized Representative with respect to exercise of claim or statement of interest certain rights and/or remedies shall not prevent the other such Authorized Representative to provide instructions to the Collateral Agent with respect to the applicable obligations thereto, (B) exercise of other rights and/or remedies. The Initial Collateral Agent shall be entitled to assume that any such instructions received by it from the Administrative Agent or the Indenture Trustee are duly given in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, accordance with the terms of this Agreementthe applicable Secured Credit Documents. The Initial Collateral Agent shall have a right to refrain from acting on any instructions in the event such instructions are reasonably deemed by it to be unclear or incomplete and the Initial Collateral Agent shall request further clarification from the party delivering such instructions.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of such Collateral AgentAgent or its Related Secured Parties;
(ii) each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral AgentAgent or any of its Related Secured Parties after the termination of the Standstill Period, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the consult with each other Collateral Agent of developments in connection with such enforcement or exercise; and;
(iii) subject each Initial Authorized Representative agrees, on behalf of itself and its Related Secured Parties, that prior to the terms and conditions commencement of any enforcement of rights or any exercise of remedies with respect to any Shared Collateral by the Initial Collateral Agent that was initiated by such Initial Authorized Representative or any of its Related Secured Parties after the termination of the applicable Credit Documents Standstill Period, such Initial Authorized Representative or Notes Documentsits Related Secured Party, as the case may be, shall provide prior written notice thereof to the other Initial Authorized Representative, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall consult with the other Authorized Representative in connection with such enforcement or exercise;
(iv) each Collateral Agent agrees and each Authorized Representative agrees, on behalf of itself and its Related Secured Parties, that it after the termination of the Standstill Period such Collateral Agent, Authorized Representative and its Related Secured Parties shall cooperate in a commercially reasonable manner with the each other Collateral Agent Agent, Authorized Representative and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral; and
(v) the Indenture Trustee and any Additional Collateral Agent for any Pari Passu Payment Lien Obligations (other than Priority Payment Lien Obligations) agree, each on behalf of itself and its Related Secured Parties, that the Indenture Trustee or such Collateral Agent and its Related Secured Parties shall:
(A) refrain from (x) taking or filing any action, judicial or otherwise, to enforce any rights or pursue any remedy under the Security Documents, except for delivering notices hereunder or (y) in the case of Indenture Trustee, instructing the Initial Collateral Agent to take any such action; and
(B) refrain from (x) exercising any rights or remedies under the Security Documents which have or may have arisen or which may arise as a result of a Default or (y) in the case of Indenture Trustee, instructing the Initial Collateral Agent to take any such action; provided, however, that nothing contained in subsections (A) and (B) above, shall prevent any Secured Party from (1) accelerating and demanding repayment of the indebtedness owing to it under and in accordance with the terms of the Senior Secured Notes Indenture or any Additional First Lien Obligations Document, as applicable, (2) imposing a default rate of interest in accordance with the Senior Secured Notes Indenture or any Additional First Lien Obligations Document, as applicable or (3) raising any defenses in any action in which it has been made a party defendant or has been joined as a third party, except that the Collateral Agent may, as provided under the provisions of this Agreement, direct and control any defense directly relating to the Collateral but not relating to any Secured Party holding Pari Passu Payment Obligations; provided, further, that, notwithstanding the foregoing or any other provision to the contrary contained herein, no Senior Secured Notes Secured Party or Additional Secured Party may exercise its rights and remedies in respect of the Shared Collateral under the applicable Security Documents or applicable law until after the passage of a period of 120 days (the “Standstill Period”) from the date of delivery of a notice in writing to the Initial Collateral Agent and the Administrative Agent of its intention to exercise such rights and remedies, which notice may only be delivered following the occurrence of and during the continuation of an Event of Default.
(c) At any time that the Initial Collateral Agent commences any exercise of remedies with respect to any portion of the Collateral of any Grantor (or becomes a creditor of any Grantor in any Insolvency or Liquidation Proceeding) it shall also use its commercially reasonable efforts to sell, liquidate, otherwise foreclose on, collect and realize on the value of, all Collateral held by any Grantor organized under the laws of Norway and as soon as reasonably practicable apply the proceeds of all such Collateral in accordance with Section 2.01(b) of this Agreement (subject to the discretion of the Administrative Agent that such actions with respect to such Collateral will not impair, delay, contradict, or derogate any rights or remedies any other Secured Party otherwise has with respect to the Collateral).
Appears in 1 contract
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this SectionWhether or not any Insolvency or Liquidation Proceeding has been commenced, Section 2.01(b) the First Lien Collateral Agent and Section 4.01(a), nothing in this Agreement the other First Lien Secured Parties on the one hand and the Second Lien Collateral Agent and the Second Lien Secured Parties on the other hand shall affect the ability of any Secured Party (i) each have their respective rights to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, (including any right of set-off and any setoff) with respect to the Collateral (including making determinations regarding the release of Liens onrelease, Disposition or restrictions with respect to the Collateral), or any sale, transfer to commence or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) , in each case, without any consultation with or the consent of this Section and Section 4.01(a), the Second Lien Collateral Agent or any such exercise of rights and remedies by any other Second Lien Secured Party may be made in such order and in such manner as such Secured Party may, subject to or the provisions of the applicable Credit Documents First Lien Collateral Agent or Notes Documents, determine in its sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or First Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent respectively; provided that no such action is not inconsistent withis, or could not result in a resolution reasonably be expected to be, inconsistent with, with the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes DocumentsCollateral, each Collateral Agent and the other Secured Parties may enforce the provisions of their respective Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law, provided that no such action is, or could reasonably be expected to be, inconsistent with the terms of this Agreement
(c) Nothing in this Agreement shall prohibit the receipt by the Second Lien Collateral Agent or any other Second Lien Secured Party of the required regular payments of principal, premium, interest, fees and other amounts due under the Second Lien Documents.
(d) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that it no covenant, agreement or restriction contained in any Second Lien Document (other than this Agreement) shall cooperate be deemed to restrict in a commercially reasonable manner with any way the rights and remedies of the First Lien Collateral Agent or the other Collateral Agent in any enforcement of rights or any exercise of remedies First Lien Secured Parties with respect to any Common Collateralthe Collateral as set forth in this Agreement and the First Lien Documents.
Appears in 1 contract
Exercise of Rights and Remedies. (a) Subject to paragraph (b) So long as the Discharge of this SectionFirst Lien Obligations has not occurred, Section 2.01(b) whether or not any Insolvency or Liquidation Proceeding has been commenced, the First Lien Collateral Agent and Section 4.01(a), nothing in this Agreement the other First Lien Secured Parties shall affect have the ability of any Secured Party (i) exclusive right to enforce any rights and exercise any remedies with respect to any Common the Collateral available under any Credit Document, any Notes Document or applicable law, (including any right of set-off and any making determinations regarding the release of Liens onrelease, Disposition or restrictions with respect to the Collateral), or any sale, transfer to commence or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) , in each case, without any consultation with or the consent of this Section the Second Lien Collateral Agent or any other Second Lien Secured Party; and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such no Second Lien Secured Party may, subject directly or indirectly, contest or otherwise hinder the First Lien Secured Parties’ ability to so enforce, exercise or commence; provided that, notwithstanding the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In additionforegoing, (Ai) in any Insolvency or Liquidation Proceeding commenced by or against any GrantorProceeding, each Secured Party the Second Lien Collateral Agent may file a proof of claim or statement of interest with respect to the applicable obligations theretoSecond Lien Obligations; (ii) the Second Lien Collateral Agent may take any action to preserve or protect the validity or enforceability of the Second Priority Liens, provided that no such action is, or could reasonably be expected to be, inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in Section 3.04; (Biii) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each the Second Lien Secured Party Parties may file any necessary responsive or appropriate responsive defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading filed made by any Person person objecting to or otherwise seeking the disallowance of the claim or claims of the Second Lien Secured Parties, including any such claims secured by the Collateral, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Second Lien Secured Party, (C) each Secured Party Parties may file any pleadings, objections, motions, or agreements which assert exercise those rights available to and remedies as unsecured creditors of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and as provided in Section 3.03; (Dv) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding Proceeding, any Second Lien Secured Party may exercise rights expressly permitted pursuant to Article VI; and (vi) subject to Section 3.02, the Second Lien Collateral Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of any Grantor, in each case applicable Standstill Period (A) through (D) above but only if and to the extent such action that the First Lien Collateral Agent has not commenced, or is not inconsistent with, or could not result in a resolution inconsistent withdiligently pursuing, the enforcement of rights or exercise remedies) (the actions described in this proviso being referred to herein as the “Second Lien Permitted Actions”). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Collateral Agent and the other Second Lien Secured Parties with respect to the Collateral shall be to receive a share of the Proceeds of the Collateral, if any are payable to the Second Lien Secured Parties in accordance with this Agreement (including after giving effect to Section 4.02) and the terms and conditions regarding payments from the Project Accounts set forth in Article VIII of this the Second Lien Credit Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to the Collateral, the First Lien Collateral Agent and/or the other First Lien Secured Parties may enforce the provisions of the First Lien Transaction Documents in accordance with the terms thereof and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur reasonable expenses in connection with any Common Collateral by such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. Nothing in this Section 3.01(b) shall be construed to limit or restrict any rights or remedies that the Second Lien Secured Parties may have pursuant to Section 3.01(a).
(c) The Second Lien Collateral Agent, such for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that, subject to Section 3.01(a)(v), no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Transaction Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent shall provide prior written notice thereof or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Lien Transaction Documents.
(d) Notwithstanding anything in this Agreement to the contrary, following the acceleration of the Indebtedness then outstanding under the First Lien Credit Agreement, the Second Lien Secured Parties may, at their sole expense and effort, upon notice to the Borrowers’ Agent and the First Lien Collateral Agent, require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties, without warranty or representation or recourse, all (but not less than all) of the First Lien Obligations; provided that (x) such notice assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, and (y) the Second Lien Secured Parties shall have paid to be provided as far the First Lien Collateral Agent, for the account of the First Lien Secured Parties, in advance immediately available funds, an amount equal to 100% of the principal of such commencement as reasonably practicableIndebtedness, plus all accrued and unpaid interest thereon, plus all accrued and unpaid costs, fees and expenses plus all of any other First Lien Obligations then outstanding (which shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documentsinclude, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common CollateralInterest Rate Protection Agreements that constitute First Lien Obligations, 100% of the aggregate amount of such First Lien Obligations, giving effect to any netting arrangements that the applicable Borrower would be required to pay if such Interest Rate Protection Agreements were terminated at such time). In order to effectuate the foregoing, the First Lien Collateral Agent shall calculate, upon the written request of the Second Lien Collateral Agent (as directed by the Second Lien Required Lenders) from time to time, the amount in cash that would be necessary so to purchase the First Lien Obligations.
Appears in 1 contract
Exercise of Rights and Remedies. (a) Subject to paragraph (b) Until the Discharge of this SectionPriority Debt, Section 2.01(b) the Collateral Agent, for itself and Section 4.01(a)on behalf of the other Noteholder Secured Parties, nothing in this Agreement shall affect the ability of any Secured Party agrees that it: (i) will not enforce or exercise, or seek to enforce or exercise, any rights and exercise or remedies (including any remedies right of setoff or notification of account debtors) with respect to any Common ABL Collateral available (including the enforcement of any right under any Credit Documentlockbox agreement, any Notes Document account control agreement, landlord waiver or applicable law, including any right of set-off and any determinations regarding the release of Liens on, bailee’s letter or any sale, transfer similar agreement or other disposition of, any Common Collateral, arrangement to which the Collateral Agent or any other rights Noteholder Secured Party is a party) or remedies available to commence or join with any Person (other than the ABL Agent) in commencing, or filing a secured creditor under the Uniform Commercial Code of any jurisdictionpetition for, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies with respect to the ABL Collateral (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a); provided, any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party mayhowever, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantorthe Collateral Agent and the Noteholder Secured Parties may take Permitted Actions, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, and (B) in the Collateral Agent may exercise any Insolvency or Liquidation Proceeding commenced by all of such rights or against remedies after a period of 180 days has elapsed since the later of (1) the date on which any Grantor, each Noteholder Secured Party may file has declared the existence of any necessary or appropriate responsive pleadings in opposition to event of default under (and as defined in) the Noteholder Agreement, (2) any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance Noteholder Secured Party shall have demanded the repayment of all the principal amount of the claim or Lien of Secured Party, Noteholder Debt and (C3) each any Noteholder Secured Party may file shall have notified the ABL Agent of such declaration of a Noteholder Default and demand (the “Standstill Period”); provided, further, that, notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Collateral Agent or 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 nonbankruptcy law, and (D) each other Noteholder Secured Party may vote on enforce or exercise any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common ABL Collateral, or commence or petition for any such action or proceeding (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), at any time during which the ABL Agent or any other ABL Secured Party shall have commenced and shall be pursuing diligently a Lien Enforcement Action; (ii) will not contest, protest or object to any foreclosure action or proceeding brought by the ABL Agent or any other ABL Secured Party, or any other enforcement or exercise by any ABL Secured Party of any rights or remedies, in each case relating to the ABL Collateral by such Collateral Agentunder the ABL Documents, such so long as the Liens of the Collateral Agent shall provide prior written notice thereof attach to the other Collateral Agent, proceeds thereof subject to the relative priorities set forth in Section 2.1 and such notice to be provided as far actions or proceedings are being pursued in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments good faith in connection accordance with such enforcement or exerciseapplicable law; and
(iii) subject to the terms and conditions of Noteholder Secured Parties’ rights under Section 3.1(a)(i), will not object to the applicable Credit Documents forbearance by the ABL Agent or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in ABL Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or any exercise of remedies with respect to any Common of the ABL Collateral; (iv) will not except for actions permitted under Section 3.1(a)(i), take or receive any ABL Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any ABL Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation) relating to the ABL Collateral; (v) will not object to the manner in which the ABL Agent or any other ABL Secured Party may seek to enforce or collect the ABL Debt or the Liens of such ABL Secured Party securing First Priority Debt, regardless of whether any action or failure to act by or on behalf of the ABL Agent or any other ABL Secured Party is, or could be, adverse to the interests of the Noteholder Secured Parties, and will not
(b) After the Discharge of Priority Debt and until the Discharge of Priority Noteholder Debt has occurred, the ABL Agent, for itself and on behalf of the other ABL Secured Parties, with respect to Excess ABL Debt agrees that it:
(i) will not, enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff or notification of account debtors) with respect to any ABL Collateral (including the enforcement of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the ABL Agent or any other ABL Secured Party is a party) or commence or join with any Person (other than Collateral Agent or Noteholder Secured Parties) in commencing, or filing a petition for, any action or proceeding with respect to such rights or remedies with respect to the ABL Collateral (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided, however, that the ABL Agent and the ABL Secured Parties may take Permitted Actions; (ii) will not contest, protest or object to any foreclosure action or proceeding brought by the Collateral Agent or any other Noteholder Secured Party, or any other enforcement or exercise by any Noteholder Secured Party of any rights or remedies relating to the ABL Collateral under the Noteholder Documents, so long as the Liens of ABL Secured Parties attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1 and such actions or proceedings are being pursued in good faith in accordance with applicable law; (iii) subject to the ABL Secured Parties’ rights under Section 3.1(b)(i), will not object to the forbearance by the Collateral Agent or the other Noteholder Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to any of the ABL Collateral; (iv) will not except for actions permitted under Section 3.1(b)(i), take or receive any ABL Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any ABL Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation) relating to the ABL Collateral; (v) will not object to the manner in which the Collateral Agent or any other Noteholder Secured Party may seek to enforce or collect the Noteholder Debt or the Liens of such Noteholder Secured Party securing Noteholder Debt, regardless of whether any action or failure to act by or on behalf of the Collateral Agent or any other Noteholder Secured Party is, or could be, adverse to the interests of the ABL Secured Parties with respect to the Excess ABL Debt and Liens securing such Excess ABL Debt, 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 marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the ABL Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (v) in each case to the extent that the ABL Collateral secures Excess ABL Debt, provided that at all times the Collateral Agent is acting in good faith in accordance with applicable law; and (vi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any Noteholder Debt or any Lien of the Collateral Agent or the Noteholder Secured Parties securing the Noteholder Debt or this Intercreditor Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Intercreditor Agreement.
Appears in 1 contract
Sources: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this SectionNotwithstanding Section 2.01, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) only the Applicable Collateral Agent shall act or refrain from acting with respect to Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral), (ii) the Applicable Collateral Agent shall act only on the instructions of the Applicable Representative and shall not follow any instructions with respect to such Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Representative (or any other Second Lien Claimholder other than the Applicable Representative) and (iii) no Other Second Lien Claimholder shall or shall instruct any Second Lien Collateral Agent to, and any other Second Lien Collateral Agent that is not the Applicable Collateral Agent shall not, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any rights and other action available to it in respect of, Shared Collateral (including with respect to any other intercreditor agreement with respect to Shared Collateral), whether under any Second Lien Collateral Document (other than the Second Lien Collateral Documents applicable to the Applicable Collateral Agent), applicable law or otherwise, it being agreed that only the Applicable Collateral Agent, acting in accordance with the Second Lien Collateral Documents applicable to it, shall be entitled to take any such actions or exercise any remedies with respect to any Common such Shared Collateral available under any Credit Document, any Notes Document or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to at such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding)time. Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions Without limitation of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In additionforegoing, (A) in any Insolvency or Liquidation Proceeding commenced by or against the Issuer or any other Grantor, each Secured Party Second Lien Collateral Agent or any of its Related Second Lien Claimholders may file a proof of claim or statement of interest with respect to the applicable obligations Second Lien Obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against the Issuer or any other Grantor, each Secured Party Second Lien Collateral Agent or its Related Second Lien Claimholders may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Partysuch Second Lien Collateral Agent or Related Second Lien Claimholder, (C) each Secured Party Second Lien Collateral Agent or its Related Second Lien Claimholders may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Issuer or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy non-bankruptcy law, and (D) each Secured Party Second Lien Collateral Agent and its Related Second Lien Claimholders may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Issuer or any other Grantor, in each case of clause (A) through (D) above above, to the extent such action is not prohibited by or inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) the equal priority of this Section:
(i) the Liens securing each Series of Second Lien Obligations granted on the Shared Collateral, the Applicable Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by (acting on the instructions of the Applicable Representative) is permitted to deal with the Shared Collateral as if such Collateral Agent;
(ii) each Applicable Collateral Agent agrees thathad a senior and exclusive Lien on such Shared Collateral. No Non-Controlling Representative, prior Non-Controlling Claimholder or Second Lien Collateral Agent that is not the Applicable Collateral Agent is permitted to the commencement of any enforcement of rights contest, protest or any exercise of remedies with respect object to any Common Collateral foreclosure proceeding or action brought by such the Applicable Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the Applicable Representative or the Controlling Claimholders or any other exercise by the Applicable Collateral Agent, such notice the Applicable Representative or the Controlling Claimholders of any rights and remedies relating to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; andShared Collateral.
(iiic) subject to the terms and conditions Each of the applicable Credit Documents or Notes Documents, each Second Lien Collateral Agent Agents (other than the 2024 Indenture Collateral Agent) and the Second Lien Representatives (other than the 2024 Indenture Representative) agrees that it shall cooperate in a commercially reasonable manner with will not accept any Lien on any Collateral for the benefit of any Series of Other Second Lien Obligations (other than funds deposited for the satisfaction, discharge or defeasance of any Other Second Lien Agreement) other than pursuant to the Second Lien Collateral Documents, and by executing this Agreement, each such Second Lien Collateral Agent and each such Second Lien Representative and the Series of Second Lien Claimholders for which it is acting pursuant to this Agreement agree to be bound by the provisions of this Agreement and the other Second Lien Collateral Agent in any enforcement of rights or any exercise of remedies with respect Documents applicable to any Common Collateralit.
Appears in 1 contract
Exercise of Rights and Remedies. (a) Subject to paragraph (b) So long as the Discharge of this SectionFirst Priority Claims has not occurred, Section 2.01(b) whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the First Priority Agent and Section 4.01(a), nothing in this Agreement the other First Priority Secured Parties shall affect have the ability of any Secured Party (i) exclusive right to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, (including any right of set-off and any setoff) with respect to the Collateral (including making determinations regarding the release of Liens onrelease, Disposition or restrictions with respect to the Collateral), or any sale, transfer to commence or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(aProceeding or Liquidation Sale), in each case, without any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to consultation with or the provisions consent of the applicable Credit Documents Second Priority Agent or Notes Documentsany other Second Priority Secured Party; provided that, determine in its sole discretion. In additionnotwithstanding the foregoing, (Ai) in any Insolvency or Liquidation Proceeding commenced by or against any GrantorProceeding, each Secured Party the Second Priority Agent may file a proof of claim or statement of interest with respect to the applicable obligations theretoSecond Priority Claims; (ii) the Second Priority Agent may take any action to preserve or protect the validity and enforceability of the Second Priority Liens, PROVIDED that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Priority Agent or any other First Priority Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Section 3.04; (iii) the Second Priority Secured Party Parties may file any necessary responsive or appropriate responsive defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading filed made by any Person objecting to or otherwise seeking the disallowance of the claim claims of the Second Priority Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Priority Claims, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Second Priority Secured Parties may exercise rights and remedies as unsecured creditors, as provided in Section 3.03(a); and (v) subject to Section 3.02(a), the Second Priority Agent and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the "SECOND PRIORITY PERMITTED ACTIONS"). Except for the Second Priority Permitted Actions, unless and until the Discharge of First Priority Claims has occurred, the sole right of the Second Priority Agent and the other Second Priority Secured Parties with respect to the Collateral shall be to receive the proceeds of the Collateral, if any, remaining after the Discharge of First Priority Claims has occurred and in accordance with the Second Priority Debt Documents and applicable law.
(b) In exercising rights and remedies with respect to the Collateral, the First Priority Agent and the other First Priority Secured Parties may enforce the provisions of the First Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion, in accordance with the First Priority Debt Documents and applicable law. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under and in accordance with the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The First Priority Agent agrees that any Disposition of any Collateral shall be conducted in accordance with applicable law. The First Priority Agent agrees to provide at least ten Business Days' prior written notice to the Second Priority Agent of its intention to foreclose upon or Dispose of any Collateral.
(c) The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Priority Security Document or any other Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the First Priority Agent or the other First Priority Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Priority Debt Documents.
(d) Notwithstanding anything in this Agreement to the contrary, upon and during the occurrence of a Triggering Event, the Second Priority Secured Parties may, at their sole expense and effort, upon notice from the Second Priority Agent to the Company and the First Priority Agent (which notice shall be irrevocable), require the First Priority Secured Parties to transfer and assign to the Second Priority Secured Parties, without warranty or representation or recourse, all (but not less than all) of the First Priority Claims and First Priority Security Documents; PROVIDED that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, and (y) the Second Priority Secured Parties shall have paid to the First Priority Agent, for the account of the First Priority Secured Parties, in immediately available funds, an amount equal to 100% of the principal of such Indebtedness PLUS all accrued and unpaid interest thereon PLUS all accrued and unpaid fees (other than any fees that become due as a result of the prepayment of the loans and other advances under, or early termination of, the First Priority Debt Agreement (such fees are referred to hereinafter as "TERMINATION FEES")) PLUS all the other First Priority Claims then outstanding (which shall include, with respect to (i) the aggregate face amount of the Letters of Credit outstanding under the First Priority Debt Agreement, an amount in cash equal to 105% thereof, and (ii) each agreement that evidence any Bank Product Obligations, 100% of the aggregate amount of such First Priority Claims). In order to effectuate the foregoing, the First Priority Agent shall calculate, upon the written request of the Second Priority Agent from time to time, the amount in cash that would be necessary to purchase the First Priority Claims. If the right set forth in this Section 3.01(d) is exercised, (1) the parties shall endeavor to close promptly thereafter but in any event within ten Business Days of the request set forth in the first sentence of this Section 3.01(d), (2) such purchase of the First Priority Claims shall be exercised pursuant to documentation mutually acceptable to each of the First Priority Agent and the Second Priority Agent, and (3) such purchase of the First Priority Claims shall be made on a pro rata basis among the Second Priority Secured Parties giving notice to the Second Priority Agent of their intent to exercise the purchase option under this Section 3.01(d) according to such Second Priority Secured Parties' portion of the Second Priority Claims outstanding on the date of such purchase. Notwithstanding anything to the contrary herein, if, at any time following the consummation of such transfer and assignment and the occurrence of the Discharge of First Priority Claims and the Discharge of Second Priority Claims (other than the payment of any fees that become due as a result of the prepayment or termination of the Second Priority Claims and the payment of any principal amount of the Second Priority Claims in excess of the Maximum Second Priority Indebtedness Amount), the Second Priority Secured Parties recover any Termination Fees prior to the first anniversary of the date of such transfer and assignment is consummated, they shall turn over such fees to First Priority Secured Parties in the form and to the extent received. In the event that any one or more of the Second Priority Secured Parties exercises the purchase option set forth in this
Section 3.01 (d) (the "PURCHASE OPTION"), (A) the First Priority Agent shall have the right, but not the obligation, to immediately resign under the First Lien Debt Documents upon the closing of such purchase, (B) the purchasing Second Priority Secured Parties shall have the right, but not the obligation, to require the First Priority Agent to immediately resign under the First Lien Debt Documents upon the closing of such purchase, and (C) the First Priority Agent shall take such action with respect to the Collateral in an Insolvency or Liquidation Proceeding as may be reasonably requested in good faith and in writing by the Second Priority Agent (on behalf of the purchasing Second Priority Secured Parties) until the closing of such purchase (but in no event later than 10 Business Days after the delivery of notice set forth in the first sentence of this Section 3.01(d)); PROVIDED, HOWEVER, (1) if First Priority Agent so requests, it shall first be indemnified to its reasonable satisfaction from the Second Priority Agent and the purchasing Second Priority Secured Parties against any and all liability, loss and expense that may be incurred by it by reason of taking or continuing to take, or refraining from taking, any such action, (2) First Priority Agent shall not be required to take any action that, in the determination of First Priority Agent, is not permitted under the First Priority Debt Documents or applicable law or will result in liability to First Priority Agent or any of the First Priority Secured Parties, (3) unless and until First Priority Agent has received any such written request or indemnification, the First Priority Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Insolvency or Liquidation Proceeding as it shall deem advisable or as the First Priority Secured Parties shall so direct, and (4) the First Priority Agent shall have the right, but not the obligation, to appoint the Second Priority Agent or any purchasing Second Priority Secured Party, as its agent for the purposes of taking any action requested by the Second Priority Agent pursuant to this clause (C). For the avoidance of doubt, the First Priority Agent hereby agrees, for itself and on behalf of the other First Priority Secured Parties, that the First Priority Secured Parties will not agree to any amendment or other modification of any provision of the First Priority Debt Documents (including, but not limited to, Section 13.1 of the Credit Agreement) each that would prohibit, limit or otherwise restrict the right of the Second Priority Secured Party may file Parties from exercising the Purchase Option.
(e) So long as the Discharge of First Priority Claims has occurred and the Discharge of Second Priority Claims has not occurred, whether or not any pleadingsInsolvency or Liquidation Proceeding has been commenced or Liquidation Sale, objectionsthe Second Priority Agent and the other Second Priority Secured Parties shall have the exclusive right to enforce rights and exercise remedies (including any right of setoff) with respect to the Collateral (including making determinations regarding the release, motionsDisposition or restrictions with respect to the Collateral), or agreements which assert to commence or seek to commence any action or proceeding with respect to such rights available to unsecured creditors of or remedies (including any Grantor arising under foreclosure action or proceeding or any Insolvency or Liquidation Proceeding or applicable nonbankruptcy lawLiquidation Sale), and in each case, without any consultation with or the consent of any Person that holds Excess Claims; PROVIDED that, notwithstanding the foregoing, (Di) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding Proceeding, any such Person may file a proof of claim or statement of interest with respect to the Excess Claims; (ii) any Grantorsuch Person may take any action to preserve or protect the validity and enforceability of the Liens that would have constituted First Priority Liens but for the fact that such Liens secure Excess Claims, in each case PROVIDED that no such action is, or could reasonably be expected to be, (A) through (D) above adverse to the extent such action is not Second Priority Liens or the rights of the Second Priority Agent or any other Second Priority Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with, or could not result in a resolution inconsistent with, with the terms of this Agreement, including the automatic release of such Liens provided in Section 3.05; (iii) any such Person may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of such Person, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Excess Claims, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) any such Person may exercise rights and remedies as unsecured creditors, as provided in Section 3.03(b) (theactions described in this proviso being referred to herein as the "EXCESS CLAIMS PERMITTED ACTIONS"). Except for the Excess Claims Permitted Actions, unless and until the Discharge of Second Priority Claims has occurred, the sole right of any Person holding Excess Claims with respect to the Collateral shall be to receive the proceeds of the Collateral, if any, remaining after the occurrence of the Discharge of First Priority Claims and the Discharge of the Second Priority Claims (PROVIDED that the principal amount of the Second Priority Claims shall be limited to the Maximum Second Priority Indebtedness Amount) and in accordance with the agreements, instruments and other documents evidencing or governing the Excess Claims and applicable law.
(bf) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to the Collateral, the Second Priority Agent and the other Second Priority Secured Parties may enforce the provisions of the Second Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion, in each case, to the extent that such enforcement or exercise is not otherwise prohibited by clauses (a) through (d) of this Section 3.01. Such exercise and enforcement shall, in each case, to the extent that such enforcement or exercise is not otherwise prohibited by clauses (a) through (d) of this Section 3.01, include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any Common Collateral by such Collateral AgentDisposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, such Collateral the Bankruptcy Code or any other Bankruptcy Law. The Second Priority Agent shall agrees to provide at least ten Business Days' prior written notice thereof to the other First Priority Agent of its intention to foreclose upon or Dispose of any Collateral; PROVIDED, HOWEVER, that the failure to give any such notice shall not in any way limit its ability to foreclose upon or Dispose of any Collateral to the extent that such foreclosure is not otherwise prohibited by clauses (a) through (d) of this Section 3.01.
(g) The First Priority Agent, such notice to be provided as far in advance for itself and on behalf of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent First Priority Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any agreement, instrument or other document that evidences or governs any Excess Claims (other than the provisions of developments in connection with such enforcement or exercise; and
(iii) subject this Agreement that inure to the terms and conditions benefit of the applicable Credit Documents First Priority Secured Parties) shall be deemed to restrict in any way the rights and remedies of the Second Priority Agent or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies Second Priority Secured Parties with respect to any Common Collateralthe Collateral as set forth in this Agreement and the other Second Priority Debt Documents.
Appears in 1 contract
Sources: Intercreditor Agreement (Perkins & Marie Callender's Inc)
Exercise of Rights and Remedies. (a) If an Event of Default occurs under any Secured Credit Document, then any decision to accelerate under the terms of such documents and, subject to the terms of this Agreement, enforce any rights or exercise any remedies will be determined in accordance with the provisions of such documents.
(b) The Common Collateral Agent shall have sole responsibility for enforcing any rights or exercising any remedies with respect to Shared Collateral on behalf of each Agent and its Related Secured Parties. Each Agent, for itself and on behalf of its Related Secured Parties, (x) agrees that it shall have no right individually to enforce any rights or exercise any remedies in connection with any of the Shared Collateral, it being understood and agreed by such Related Secured Party that all rights and remedies thereunder may be exercised solely by the Common Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Agreement and the relevant Security Documents, and (y) undertakes that it shall not seek to enforce any rights or exercise any remedies with respect to the Shared Collateral other than through the agency of the Common Collateral Agent. The Common Collateral Agent may refrain from enforcing any rights or exercising any remedies with respect to the Shared Collateral unless instructed otherwise by any Agent in accordance with the terms and conditions of this Agreement.
(c) Subject to paragraph paragraphs (bd), (e) and (f) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party Agent to provide Instructions to the Common Collateral Agent, where “Instructions” means the instructions of any Agent to the Common Collateral Agent (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable lawLaw, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code applicable Law of any jurisdiction, the Bankruptcy Code jurisdiction or any other Bankruptcy Law or Laws, (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency Proceeding) or Liquidation Proceeding(iii) to refrain, desist or otherwise abstain from enforcing rights, exercising remedies or commencing any actions as described in this Section’s paragraphs (c)(i) and (c)(ii). Subject to paragraph paragraphs (bd), (e) and (f) of this Section and Section 4.01(a)Section, any such exercise of rights and remedies by the Common Collateral Agent on behalf of any Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Agent may determine in accordance with such Agent’s Related Secured Party may, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.
Appears in 1 contract
Sources: First Priority Intercreditor Agreement (UTAC Holdings Ltd.)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law Law, or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of such Collateral AgentAgent or its Related Secured Parties;
(ii) each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral AgentAgent or any of its Related Secured Parties, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the each other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable each Collateral Agent’s Related Secured Credit Documents or Notes Documents, each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that it such Collateral Agent and its Related Secured Parties, to the extent requested by the other Collateral Agent, shall cooperate in a commercially reasonable manner with the each other Collateral Agent and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral; provided however that nothing in this section shall require any Collateral Agent to cooperate with any other Collateral Agent if it has not received the appropriate or necessary consents, waivers, direction or indemnity from its Related Secured Parties.
Appears in 1 contract
Sources: Intercreditor Agreement (American Renal Associates LLC)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) Until the Discharge of this SectionPriority Debt, Section 2.01(b) the Collateral Agent, for itself and Section 4.01(a)on behalf of the other Noteholder Secured Parties, nothing in this Agreement shall affect the ability of any Secured Party agrees that it:
(i) will not enforce or exercise, or seek to enforce or exercise, any rights and exercise or remedies (including any remedies right of setoff or notification of account debtors) with respect to any Common ABL Collateral available (including the enforcement of any right under any Credit Documentlockbox agreement, any Notes Document account control agreement, landlord waiver or applicable law, including any right of set-off and any determinations regarding the release of Liens on, bailee’s letter or any sale, transfer similar agreement or other disposition of, any Common Collateral, arrangement to which the Collateral Agent or any other rights Noteholder Secured Party is a party) or remedies available to commence or join with any Person (other than the ABL Agent) in commencing, or filing a secured creditor under the Uniform Commercial Code of any jurisdictionpetition for, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies with respect to the ABL Collateral (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a); provided, any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party mayhowever, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, that (A) the Collateral Agent and the Noteholder Secured Parties may take Permitted Actions, and (B) the Collateral Agent may exercise any or all of such rights or remedies after a period of 180 days has elapsed since the later of (1) the date on which any Noteholder Secured Party has declared the existence of any event of default under (and as defined in) the Noteholder Agreement, (2) any Noteholder Secured Party shall have demanded the repayment of all the principal amount of the Noteholder Debt and (3) any Noteholder Secured Party shall have notified the ABL Agent of such declaration of a Noteholder Default and demand (the “Standstill Period”); provided, further, that, notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Collateral Agent or any other Noteholder Secured Party enforce or exercise any rights or remedies with respect to any ABL Collateral, or commence or petition for any such action or proceeding (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding commenced by Proceeding), at any time during which the ABL Agent or against any Grantor, each other ABL Secured Party may file shall have commenced and shall be pursuing diligently a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral AgentEnforcement Action;
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the ABL Agent or any other ABL Secured Party, or any other enforcement or exercise by any ABL Secured Party of any rights or remedies, in each case relating to the ABL Collateral under the ABL Documents, so long as the Liens of the Collateral Agent agrees that, prior attach to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice proceeds thereof subject to the other Collateral Agent, relative priorities set forth in Section 2.1 and such notice to be provided as far actions or proceedings are being pursued in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments good faith in connection accordance with such enforcement or exercise; andapplicable law;
(iii) subject to the terms and conditions of Noteholder Secured Parties’ rights under Section 3.1(a)(i), will not object to the applicable Credit Documents forbearance by the ABL Agent or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in ABL Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or any exercise of remedies with respect to any Common of the ABL Collateral;
(iv) will not except for actions permitted under Section 3.1(a)(i), take or receive any ABL Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any ABL Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation) relating to the ABL Collateral;
(v) will not object to the manner in which the ABL Agent or any other ABL Secured Party may seek to enforce or collect the ABL Debt or the Liens of such ABL Secured Party securing First Priority Debt, regardless of whether any action or failure to act by or on behalf of the ABL Agent or any other ABL Secured Party is, or could be, adverse to the interests of the Noteholder Secured Parties, and will not assert, and hereby 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 ABL Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (v), provided that at all times the ABL Agent is acting in good faith in accordance with applicable law; and
(vi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Priority Debt, any Lien of the ABL Agent on the ABL Collateral securing the First Priority Debt or this Intercreditor Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Intercreditor Agreement.
(b) After the Discharge of Priority Debt and until the Discharge of Priority Noteholder Debt has occurred, the ABL Agent, for itself and on behalf of the other ABL Secured Parties, with respect to Excess ABL Debt agrees that it:
(i) will not, enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff or notification of account debtors) with respect to any ABL Collateral (including the enforcement of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the ABL Agent or any other ABL Secured Party is a party) or commence or join with any Person (other than Collateral Agent or Noteholder Secured Parties) in commencing, or filing a petition for, any action or proceeding with respect to such rights or remedies with respect to the ABL Collateral (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided, however, that the ABL Agent and the ABL Secured Parties may take Permitted Actions;
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the Collateral Agent or any other Noteholder Secured Party, or any other enforcement or exercise by any Noteholder Secured Party of any rights or remedies relating to the ABL Collateral under the Noteholder Documents, so long as the Liens of ABL Secured Parties attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1 and such actions or proceedings are being pursued in good faith in accordance with applicable law;
(iii) subject to the ABL Secured Parties’ rights under Section 3.1(b)(i), will not object to the forbearance by the Collateral Agent or the other Noteholder Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to any of the ABL Collateral;
(iv) will not except for actions permitted under Section 3.1(b)(i), take or receive any ABL Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any ABL Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation) relating to the ABL Collateral;
(v) will not object to the manner in which the Collateral Agent or any other Noteholder Secured Party may seek to enforce or collect the Noteholder Debt or the Liens of such Noteholder Secured Party securing Noteholder Debt, regardless of whether any action or failure to act by or on behalf of the Collateral Agent or any other Noteholder Secured Party is, or could be, adverse to the interests of the ABL Secured Parties with respect to the Excess ABL Debt and Liens securing such Excess ABL Debt, 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 marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the ABL Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (v) in each case to the extent that the ABL Collateral secures Excess ABL Debt, provided that at all times the Collateral Agent is acting in good faith in accordance with applicable law; and
(vi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any Noteholder Debt or any Lien of the Collateral Agent or the Noteholder Secured Parties securing the Noteholder Debt or this Intercreditor Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Intercreditor Agreement.
Appears in 1 contract
Sources: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law Law, or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a)Section, any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of such Collateral AgentAgent or its Related Secured Parties;
(ii) each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral AgentAgent or any of its Related Secured Parties, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the consult with each other Collateral Agent of developments on a regular basis in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that it such Collateral Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with the each other Collateral Agent and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral.
Appears in 1 contract
Sources: First Lien Intercreditor Agreement (Newsprint Ventures, Inc.)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of the Agent, the Senior Secured Notes Trustee and any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law Law, or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by the Agent, the Senior Secured Notes Trustee and any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as the Agent, the Senior Secured Notes Trustee and such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) the Agent, the Senior Secured Notes Trustee and each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of the Agent, the Senior Secured Notes Trustee or such Collateral AgentAgent or its Related Secured Parties;
(ii) the Agent, the Senior Secured Notes Trustee and each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral the Agent, the Senior Secured Notes Trustee or such Collateral Agent or any of its Related Secured Parties, the Agent, the Senior Secured Notes Trustee and such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the consult with each other Collateral Agent of developments on a regular basis in connection with such enforcement or exercise; and
(iii) subject to the terms Agent, the Senior Secured Notes Trustee and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that it such Collateral Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with the each other Collateral Agent and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral.
Appears in 1 contract
Sources: First Lien Intercreditor Agreement (Ami Celebrity Publications, LLC)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Party Parties (i) to enforce any rights and exercise any remedies with respect to any Common Shared Collateral available under any Related Secured Credit Document, any Notes Document Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law Law, or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Party Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Party Parties may, subject to the provisions of the applicable their Related Secured Credit Documents or Notes Documents, determine in its their sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent and its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made herein by or on behalf of such Collateral AgentAgent or its Related Secured Parties;
(ii) each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral by such Collateral AgentAgent or any of its Related Secured Parties, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to the each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the consult with each other Collateral Agent of developments on a regular basis in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees agrees, on behalf of itself and its Related Secured Parties, that it such Collateral Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with the each other Collateral Agent and its Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Common Shared Collateral.
Appears in 1 contract
Sources: First Lien Intercreditor Agreement (Reddy Ice Holdings Inc)
Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this SectionNotwithstanding Section 2.01, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) only the Applicable Collateral Agent shall act or refrain from acting with respect to Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral), (ii) the Applicable Collateral Agent shall act only on the instructions of the Applicable Representative and shall not follow any instructions with respect to such Shared Collateral (including with respect to any other intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Representative (or any other Second Lien Claimholder other than the Applicable Representative) and (iii) no Other Second Lien Claimholder shall or shall instruct any Second Lien Collateral Agent to, and any other Second Lien Collateral Agent that is not the Applicable Collateral Agent shall not, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any rights and other action available to it in respect of, Shared Collateral (including with respect to any other intercreditor agreement with respect to Shared Collateral), whether under any Second Lien Collateral Document (other than the Second Lien Collateral Documents applicable to the Applicable Collateral Agent), applicable law or otherwise, it being agreed that only the Applicable Collateral Agent, acting in accordance with the Second Lien Collateral Documents applicable to it, shall be entitled to take any such actions or exercise any remedies with respect to any Common such Shared Collateral available under any Credit Document, any Notes Document or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to at such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding)time. Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions Without limitation of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In additionforegoing, (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Secured Party Second Lien Collateral Agent or any of its Related Second Lien Claimholders may file a proof of claim or statement of interest with respect to the applicable obligations Second Lien Obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, each Secured Party Second Lien Collateral Agent or its Related Second Lien Claimholders may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Partysuch Second Lien Collateral Agent or Related Second Lien Claimholder, (C) each Secured Party Second Lien Collateral Agent or its Related Second Lien Claimholders may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Company or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy non-bankruptcy law, and (D) each Secured Party Second Lien Collateral Agent and its Related Second Lien Claimholders may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Company or any other Grantor, in each case of clause (A) through (D) above above, to the extent such action is not prohibited by or inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
(b) Notwithstanding paragraph (a) the equal priority of this Section:
(i) the Liens securing each Series of Second Lien Obligations granted on the Shared Collateral, the Applicable Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by (acting on the instructions of the Applicable Representative) is permitted to deal with the Shared Collateral as if such Collateral Agent;
(ii) each Applicable Collateral Agent agrees thathad a senior and exclusive Lien on such Shared Collateral. No Non-Controlling Representative, prior Non-Controlling Claimholder or Second Lien Collateral Agent that is not the Applicable Collateral Agent is permitted to the commencement of any enforcement of rights contest, protest or any exercise of remedies with respect object to any Common Collateral foreclosure proceeding or action brought by such the Applicable Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the Applicable Representative or the Controlling Claimholders or any other exercise by the Applicable Collateral Agent, such notice the Applicable Representative or the Controlling Claimholders of any rights and remedies relating to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; andShared Collateral.
(iiic) subject to the terms and conditions Each of the applicable Credit Documents or Notes Documents, each Second Lien Collateral Agent Agents (other than the 2021 Indenture Collateral Agent) and the Second Lien Representatives (other than the 2021 Indenture Representative) agrees that it shall cooperate in a commercially reasonable manner with will not accept any Lien on any Collateral for the benefit of any Series of Other Second Lien Obligations (other than funds deposited for the satisfaction, discharge or defeasance of any Other Second Lien Agreement) other than pursuant to the Second Lien Collateral Documents, and by executing this Agreement, each such Second Lien Collateral Agent and each such Second Lien Representative and the Series of Second Lien Claimholders for which it is acting pursuant to this Agreement agree to be bound by the provisions of this Agreement and the other Second Lien Collateral Agent in any enforcement of rights or any exercise of remedies with respect Documents applicable to any Common Collateralit.
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Exercise of Rights and Remedies. (a) Subject to paragraph (b) of this SectionWhether or not any Insolvency or Liquidation Proceeding has been commenced, Section 2.01(b) the First Lien Collateral Agent and Section 4.01(a), nothing in this Agreement the other First Lien Secured Parties on the one hand and the Second Lien Collateral Agent and the Second Lien Secured Parties on the other hand shall affect the ability of any Secured Party (i) each have their respective rights to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, (including any right of set-off and any setoff) with respect to the Collateral (including making determinations regarding the release of Liens onrelease, Disposition or restrictions with respect to the Collateral), or any sale, transfer to commence or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) , in each case, without any consultation with or the consent of this Section and Section 4.01(a), the Second Lien Collateral Agent or any such exercise of rights and remedies by any other Second Lien Secured Party may be made in such order and in such manner as such Secured Party may, subject to or the provisions of the applicable Credit Documents First Lien Collateral Agent or Notes Documents, determine in its sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or First Lien of Secured Party, (C) each Secured Party may file 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 nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent respectively; provided that no such action is not inconsistent withis, or could not result in a resolution reasonably be expected to be, inconsistent with, with the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section:
(i) each Collateral Agent shall remain subject to, In exercising rights and bound by, all covenants or agreements made herein by such Collateral Agent;
(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and
(iii) subject to the terms and conditions of the applicable Credit Documents or Notes DocumentsCollateral, each Collateral Agent agrees and the other Secured Parties may enforce the provisions of their respective Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law, provided that it shall cooperate in a commercially reasonable manner no such action is, or could reasonably be expected to be, inconsistent with the other terms of this Agreement
(c) Nothing in this Agreement shall prohibit the receipt by the Second Lien Collateral Agent in any enforcement of rights or any exercise other Second Lien Secured Party of remedies with respect to any Common Collateralthe required regular payments of principal, premium, interest, fees and other amounts due under the Second Lien Documents.
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Sources: Credit Agreement (WCI Steel, Inc.)