Exclusive Enforcement. (a) Until the First Priority Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Secured Parties shall have the exclusive right to take and continue any Enforcement Action with respect to the Common Collateral, without any consultation with or consent of any Second Priority Secured Party, provided that, notwithstanding the foregoing, (i) in any Insolvency Proceeding, any Second Priority Secured Party may file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Representative 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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Second Priority 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 First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and in accordance with the Second Priority Documents and applicable law.
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (Universal City Travel Partners)
Exclusive Enforcement. (a) Until the First Priority Revolving Facility Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Revolving Facility Secured Parties shall have the exclusive right to take and continue any Enforcement Action with respect to the Common Revolving Facility Priority Collateral, without any consultation with or consent of any Second Priority Term Facility Secured Party, Party except as otherwise expressly provided that, notwithstanding for in this Agreement; provided that nothing contained herein shall be construed as preventing the foregoing, Term Facility Agent or any Term Facility Secured Party from taking any action which is reasonably necessary to (i) in any Insolvency Proceedingperfect the Term Facility Liens upon the Revolving Facility Priority Collateral (other than by possession or “control” (within the meaning of the Uniform Commercial Code)), any Second Priority Secured Party may file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to prove, preserve or protect (but not enforce) the validity and enforceability of Term Facility Liens upon the liens on the Second Revolving Facility Priority Collateral, provided that no so long as such action iswould not, or could reasonably be expected to bein any case, (A) adverse to the Liens or the rights of the First Priority Representative or adversely affect any other First Priority Secured Party to exercise remedies in respect thereof Revolving Facility Lien or (Biii) otherwise inconsistent enforce any Term Facility Liens upon the Revolving Facility Priority Collateral in accordance with the express terms of this Agreement, including Section 2.5 and this Section 3.1. Upon the automatic release occurrence and during the continuance of Liens provided in Section 4.2; (iii) an event of default under the Second Priority Revolving Facility Documents, the Revolving Facility Agent and the other Revolving Facility Secured Parties may file take and continue any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies Enforcement Action with respect to the Second Revolving Facility Obligations and the Revolving Facility Priority Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein such order and manner as the “Second Priority Permitted Actions”). Except for the Second Priority Permitted Actions, unless and until the First Lien Obligation Payment Date has occurred, the they may determine in their sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred discretion and in accordance with the Second provisions of the Revolving Facility Documents. Notwithstanding anything to the contrary in this Section 3.1 and Section 3.2, if (a) the Term Facility Agent notifies the Revolving Facility Agent that it is permitted and wishes to initiate an Enforcement Action under the Term Facility Documents as of the date such notice is given as a result of the events of default described in such notice (such events, the “Term Facility Enforcement Trigger Events”) and (b) the Revolving Facility Agent or the Revolving Facility Secured Parties, as the case may be, do not initiate an Enforcement Action with respect to the Revolving Facility Priority Documents Collateral within 180 days after the receipt of such notice (if any such Enforcement Action so initiated is subsequently withdrawn at the option of the Revolving Facility Agent or the Revolving Facility Secured Parties, as the case may be, prior to the conclusion of such Enforcement Action other than in connection with the settlement thereof and applicable lawthe cure of the underlying Term Facility Enforcement Trigger Events, then such 180-day period shall continue to accrue as if such Enforcement Action had not been initiated) or an Insolvency Proceeding occurs during such period, the Term Facility Agent and the Term Facility Secured Parties shall have the right to initiate and prosecute Enforcement Actions with respect to the Revolving Facility Priority Collateral to the extent that Term Facility Enforcement Trigger Events are continuing on the last day of such period (it being understood that the proceeds of any such Enforcement Action shall be applied in accordance with the priorities set forth in this Agreement and that such Enforcement Action will otherwise be subject to the other provisions of this Agreement).
Appears in 2 contracts
Samples: Intercreditor Agreement (Fender Musical Instruments Corp), Intercreditor Agreement (Fender Musical Instruments Corp)
Exclusive Enforcement. (a) Until Subject to Section 3.9, until the earlier of the occurrence of the First Priority Obligations Payment Date has occurredor the expiration or other termination of the then current Standstill Period, whether or not an Insolvency Proceeding has been commenced by or against any Loan Credit Party, the First Priority Secured Parties shall have the exclusive right to take and continue take, continue, oppose, or otherwise prosecute, defend, settle or consent to any Enforcement Action with respect to the Common CollateralAction, without any consultation with or consent of any Second Priority Secured Party, provided thatand the Second Priority Secured Parties shall not take any position contrary to the First Priority Secured Parties, or support any other Person who takes any position contrary to the First Priority Secured Parties, with respect to such Enforcement Action (it being understood that any Second Priority Secured Party, notwithstanding the foregoing, may (i) in at any Insolvency Proceeding, any time demand payment of amounts then due and payable pursuant to the terms of the Second Priority Secured Party may Agreement (other than as a result of an acceleration subsequent to an event of default under the Second Priority Agreement) and pursue unsecured lender remedies with regard to any such payments not made under the Second Priority Agreement, (ii) after the expiration of the Standstill Period, demand payment for or accelerate the payment of the Second Priority Loans in accordance with the terms of the Second Priority Documents, (iii) file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to beinterest, (Aiv) adverse to the Liens or the rights of the First Priority Representative 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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any all necessary responsive or defensive pleadings in opposition to any motion, claimclaims, adversary proceeding proceedings or other pleading pleadings made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Common Collateral, and (v) make any filings, arguments or motions or take other actions to preserve or protect its Liens on the Collateral or otherwise make any arguments or file other rights, including to stay any motions pertaining to statute of limitations). Upon the Second occurrence and during the continuance of a First Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2Default, the Second First Priority Representative and the other Second First Priority Secured Parties may enforce take and continue any of their rights and exercise any of their remedies Enforcement Action with respect to the Second First Priority Obligations and the Common Collateral after in such order and manner as they may determine in their sole discretion. Notwithstanding 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 Actionsforegoing, unless and until if the First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the First Priority Lenders shall have extended loans, credit accommodations or other Second financial accommodations under the First Priority Secured Parties with respect to the Collateral shall be to receive a share Documents in excess of the proceeds of the Second First Priority CollateralObligations (such excess, if anyan “Overadvance”), after and the First Priority Obligations Payment Date has shall have occurred and in accordance with (notwithstanding that an Overadvance remains outstanding under the First Priority Documents), the provisions of this Section 3.1 shall not prevent the Second Priority Documents Representative and/or the Second Priority Lenders from pursuing any remedies available to it or them as secured or unsecured lenders with regard to the Common Collateral and applicable lawnotwithstanding the provisions of Section 2.1 hereof, the Liens in the Common Collateral held by the Second Priority Representative securing the Second Priority Obligations shall thereafter be senior and prior to the remaining claims of the First Priority Secured Parties with regard to any Overadvance outstanding under the First Priority Documents.
Appears in 1 contract
Exclusive Enforcement. (a) Until the First Priority Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Secured Parties shall have the exclusive right to take and continue any Enforcement Action with respect to the Common Collateral, without any consultation with or consent of any Second Priority Secured Party or Third Priority Secured Party, provided thatbut subject to the proviso set forth in Section 5.1; provided, notwithstanding the foregoinghowever, that (i) in any Insolvency Proceeding, any Second Priority Secured Party may file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take and continue any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse Enforcement Action with respect to the Liens or Common Collateral after a period of at least 180 days has elapsed since the rights of the First Priority Representative or any other First Priority Secured Party to exercise remedies in respect thereof or later of: (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 4.2; (iiiI) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, date on which the Second Priority Representative and declared the other Second Priority Secured Parties may enforce any existence of their rights and exercise any of their remedies a default with respect to the Second Priority Collateral after Agreement, accelerated (to the termination extent such amount was not already due and owing) the payment of the Standstill Period principal amount of the Second Priority Obligations, and demanded payment thereof and (II) the date on which the First Priority Representative received a notice from the Second Priority Representative as to actions described in this proviso being referred clause (I), above, and (ii) the Third Priority Representative may take and continue any Enforcement Action with respect to herein as the “Second Common Collateral after a period of at least 360 days has elapsed since the later of: (I) the date on which the Third Priority Permitted Actions”). Except for Representative declared the existence of a default with respect to the Third Priority Agreement, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of the Third Priority Obligations, and demanded payment therof and (II) the date on which the First Priority Representative and the Second Priority Permitted ActionsRepresentative received a notice from the Third Priority Representative as to actions described in clause (I), unless above; provided further, however, that (x) neither the Second Priority Representative nor any other Second Priority Secured Party shall be entitled to exercise (and until shall not exercise) any rights, powers, or remedies with respect to the Common Collateral if, notwithstanding the expiration of such 180 day period, the First Lien Obligation Payment Date has occurredPriority Representative or the other First Priority Secured Parties (A) shall have commenced and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of such Common Collateral (prompt notice of such exercise to be given to the Second Priority Representative) or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies and (y) neither the Third Priority Representative nor any other Third Priority Secured Party shall be entitled to exercise (and shall not exercise) any rights, powers, or remedies with respect to the Common Collateral if, notwithstanding the expiration of such 360 day period, the sole right of First Priority Representative or the other First Priority Secured Parties, or the Second Priority Representative or the other Second Priority Secured Parties, (A) shall have commenced and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of such Common Collateral (prompt notice of such exercise to be given to the Third Priority Representative) or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies. Upon the occurrence and during the continuance of a default or an event of default under the First Priority Documents, the First Priority Representative and the other Second First Priority Secured Parties may take and continue any Enforcement Action with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and the Common Collateral in such order and manner as they may determine in their sole discretion, in accordance with the Second terms of the First Priority Documents and applicable lawDocuments.
Appears in 1 contract
Exclusive Enforcement. (a) Until the First Priority Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Senior Secured Parties shall have the exclusive right to take and continue any Enforcement Action (including the right to credit bid their debt) with respect to the Common Senior Collateral, without any consultation with or consent of any Second Priority Junior Secured Party, but subject to the proviso set forth in Section 5.1; provided that, notwithstanding nothing contained herein shall be construed as preventing any Junior Secured Party from taking any action which is reasonably necessary to (i) perfect the foregoingJunior Liens upon the Common Collateral (other than by possession or “control” (within the meaning of the Uniform Commercial Code)) or (ii) prove, preserve or protect (but not enforce) the Junior Liens upon the Senior Collateral, so long as such action would not, in any case, adversely affect any Senior Lien. Notwithstanding any provision in this Agreement to the contrary, (i) the Term Loan Secured Parties shall have the right to make a bid for the purchase of the ABL Priority Collateral in any Insolvency Proceeding, provided that any Second Priority Secured Party such bid may file not include a proof “credit bid” in respect of claim Term Loan Obligations unless the cash proceeds of such bid are otherwise sufficient to result in the payment in cash in full (or statement cash collateralization or defeasance in accordance with the terms of interest with respect to Second Priority the ABL Documents) of the ABL Obligations (other than those that constitute Unasserted Contingent Obligations; ) and (ii) the Second Priority Representative may take any action ABL Secured Parties shall have the right to preserve or protect make a bid for the validity and enforceability purchase of the liens on the Second Priority CollateralTerm Loan Collateral in any Insolvency Proceeding, provided that no any such action is, or could reasonably be expected bid may not include a “credit bid” in respect of ABL Obligations unless the cash proceeds of such bid are otherwise sufficient to be, (A) adverse to result in the Liens or the rights payment in cash in full of the First Priority Representative or any Term Loan Obligations (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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority than those that constitute Unasserted Contingent Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Second Priority 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 First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and in accordance with the Second Priority Documents and applicable law.
Appears in 1 contract
Exclusive Enforcement. (a) Until the First Priority Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan PartyPar Piceance, the First Priority Secured Parties shall have the exclusive right to take and continue any Enforcement Action with respect to the Common Collateral, without any consultation with or and without any consent of any Second Priority Secured Party, provided but subject to the proviso set forth in Section 5.1; provided, however, that, notwithstanding the foregoing, (i) in any Insolvency Proceeding, any Second Priority Secured Party may file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity for itself and enforceability on behalf of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Representative 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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file take and continue any responsive Enforcement Action or defensive pleadings in opposition exercise its right to take any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies actions with respect to the Second Priority any Common 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 First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and in accordance with the Second Priority Documents and applicable lawlaw after the passage of a period of one hundred and eighty (180) days (the “Standstill Period”) from the date of delivery of a notice in writing by the Second Priority Representative to the First Priority Representative of the Second Priority Representative’s intention to exercise such rights and remedies with respect to any of the Common Collateral, which notice may only be delivered following the acceleration of the Second Priority Obligations as a result of the occurrence of and continuation of an “Event of Default” under the PPC Credit Agreement; provided, further, however, that notwithstanding the foregoing, (1) in no event shall the Second Priority Representative nor any Second Priority Secured Party take any Enforcement Action or exercise or continue to exercise any such rights or remedies with respect to the Common Collateral if, notwithstanding the expiration of the Standstill Period, the First Priority Representative or any First Priority Secured Party shall have commenced and be diligently pursuing the exercise of any of its rights and remedies with respect to any portion of the Common Collateral, in each case, in good faith (prompt notice of such exercise to be given to the Second Priority Representative), and (2) the Standstill Period shall be tolled for any period that the First Priority Representative or the First Priority Secured Parties are stayed (whether by the automatic stay pursuant to Section 362 of the Bankruptcy Code or otherwise) or otherwise prohibited by law or court order from taking any Enforcement Action or exercising any such rights and remedies with respect to all or any part of the Common Collateral. Upon the occurrence and during the continuance of a default or an event of default under the First Priority Documents, the First Priority Representative and the other First Priority Secured Parties may take and continue any Enforcement Action with respect to the First Priority Obligations and the Common Collateral in such order and manner as they may determine in their sole discretion.
Appears in 1 contract
Exclusive Enforcement. (a) Until So long as the First Priority Lien Obligations Payment Date has occurredhave not been Paid in Full, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Secured Parties Lien Representative shall have the exclusive right to take and continue continue, or not to take (subject to clause (a) below), any Enforcement Action with respect to the Common Collateral, without any consultation with or consent of any Second Priority Lien Secured Party, provided thatbut subject to the proviso set forth in Section 5.01, notwithstanding and (a) from the foregoingdate hereof until the occurrence of the Second Lien Enforcement Date (such period, the "STANDSTILL PERIOD"), neither the Second Lien Representative nor any Second Lien Secured Party shall exercise or seek to exercise any rights or remedies (including any right of set-off or recoupment) with respect to any Second Lien Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee's letter or similar agreement or arrangement to which the Second Lien Representative or any Second Lien Secured Party may be a party) or institute or commence (or join with any other Person in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including, without limitation, any Insolvency Proceeding) with respect to any Lien held by it under the Second Lien Collateral Documents or otherwise, and (b) neither the Second Lien Representative nor any other Second Lien Secured Party shall (i) in any Insolvency Proceedingcontest, protest or object to, or otherwise interfere with, hinder or delay, any Second Priority Secured Party may file a proof of claim foreclosure proceeding or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of brought by the First Priority Lien Representative or any other First Priority Lien Secured Party Party, any rights and remedies relating to exercise remedies in respect thereof the Collateral under the First Lien Collateral Documents or (B) otherwise inconsistent with otherwise, provided that the terms of this Agreement, including the automatic release of Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims respective interests of the Second Priority Lien Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining Parties attach to the Second Priority Obligationsproceeds thereof, in each case, subject to the extent not inconsistent with the terms of this Agreement; and relative priorities described in Section 4.01 hereof, or (ivii) subject to Section 3.2contest, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect protest or object to the Second Priority 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 forbearance by the First Lien Obligation Payment Date has occurred, Representative or the sole right First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to any Collateral. Each of the Second Priority Lien Representative and each other Second Lien Secured Party hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Second Lien Collateral Documents or in the Second Lien Credit Agreement or otherwise shall be deemed to restrict in any way the rights and remedies of the First Lien Representative or the other Second Priority First Lien Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after as set forth in this Agreement and the First Priority Lien Collateral Documents. Upon the occurrence and during the continuance of a default or an event of default in respect of a First Lien Obligation permitting the First Lien Representative to take any Enforcement Action under any First Lien Collateral Document, the First Lien Representative may take and continue any Enforcement Action with respect to the First Lien Obligations Payment Date has occurred and the Collateral exclusively and in accordance with the Second Priority Documents such order and applicable lawmanner as it may determine in its sole discretion.
Appears in 1 contract
Exclusive Enforcement. (a) Until the First Priority Lien Obligations Payment Date has occurredhave been Paid in Full, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Secured Parties Lien Representative shall have the exclusive right to take and continue continue, or not to take (subject to clause (a) below), any Enforcement Action with respect to the Common Collateral, without any consultation with or consent of any Second Priority Lien Secured Party, but subject to the proviso set forth in Section 5.01, and (a) from the date hereof until the occurrence of the Second Lien Enforcement Date (such period, the “Standstill Period”), neither the Second Lien Representative nor any Second Lien Secured Party shall exercise or seek to exercise any rights or remedies (including any right of set-off or recoupment) with respect to any Second Lien Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second Lien Representative or any Second Lien Secured Party may be a party) or institute or commence (or join with any other Person in commencing) any enforcement, collection, execution, levy or foreclosure action or proceeding (including, without limitation, any Insolvency Proceeding) with respect to any Lien held by it under the Second Lien Collateral Documents or otherwise, provided thatthat the Second Lien Representative on behalf of itself or any other Second Lien Secured Party, notwithstanding may exercise any or all such rights after the foregoingSecond Lien Enforcement Date only so long as the First Lien Representative has not commenced, prior to the expiration of the Standstill Period, the exercise of, and is not diligently pursuing in good faith, any of its rights or remedies with respect to all or a material portion of the Collateral (i) including seeking relief from the automatic stay or any other stay in any Insolvency Proceeding), and (b) neither the Second Lien Representative nor any Second Lien Secured Party shall (i) contest, protest or object to, or otherwise interfere with, hinder or delay, any foreclosure proceeding or action brought by the First Lien Representative or any First Lien Secured Party, any rights and remedies relating to the Collateral under the First Lien Collateral Documents or otherwise, provided that the respective interests of the Second Priority Lien Secured Parties attach to the proceeds thereof, subject to the relative priorities described in Section 4.01 hereof or (ii) contest, protest or object to the forbearance by the First Lien Representative or the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to any Collateral. In the event that in accordance with the provisions above, the Second Lien Representative, on behalf of itself or any other Second Lien Secured Party, has commenced any actions to enforce its Lien on any Collateral and is diligently pursuing such actions, neither the First Lien Representative nor any First Lien Secured Party may file shall take any action of a proof of claim or statement of interest similar nature with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity such Collateral. In exercising rights and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Representative or any other First Priority Secured Party to exercise remedies in respect thereof any Enforcement Action or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Second Priority 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 First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateralin accordance herewith, if any, after the First Priority Lien Representative and the First Lien Secured Parties may take and continue any Enforcement Action with respect to the First Lien Obligations Payment Date has occurred and the Collateral exclusively and in accordance with the Second Priority Documents such order and applicable lawmanner as they may determine in their sole discretion.
Appears in 1 contract
Exclusive Enforcement. (a) Until the First Priority Lien Obligations Payment Date has occurredsecured on a first priority basis by Other Collateral shall have been Paid in Full, whether or not an Insolvency Proceeding has been commenced by or against any Loan Partyof the Credit Parties, the applicable First Priority Secured Lien Controlling Collateral Parties shall have the exclusive right to take and continue any Enforcement Action with respect to the Common Other Collateral, without any consultation with or consent of any Second Priority Lien Secured Party or any Third Lien Secured Party, but subject to the proviso set forth in Sections 5.01(a) and 5.01(b); provided, however, that notwithstanding anything to the contrary in this Section 3.01(a), the applicable Second Lien Controlling Collateral Parties may exercise any or all such rights and take or institute all such other actions in respect of the Other Collateral and make such objections after the passage of a period of 180 days (the "OTHER COLLATERAL STANDSTILL PERIOD") from the date of delivery of a notice in writing to the applicable First Lien Controlling Collateral Parties of their intention to exercise their right to take such actions in respect of such Other Collateral, which notice may only be delivered following the occurrence of and during the continuation of an event of default in respect of a First Lien Obligation secured by the Other Collateral; provided thatfurther, however, that notwithstanding anything herein to the contrary, in no event shall the Second Lien Controlling Collateral Parties or any other Second Lien Secured Parties exercise or continue to exercise any rights or remedies or take such other actions with respect to the Other Collateral as aforesaid if, notwithstanding the foregoing, (i) in any Insolvency Proceeding, any Second Priority Secured Party may file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability expiration of the liens on the Second Priority CollateralOther Collateral Standstill Period, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Representative Lien Controlling Collateral Parties 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 Liens provided in Section 4.2; (iii) the Second Priority Lien Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking shall have commenced and shall continue the disallowance exercise of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their or remedies with respect to the Other Collateral (prompt notice of such exercise to be given to the applicable Second Priority Lien Controlling Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the “Second Priority Permitted Actions”Parties). Except for Upon the Second Priority Permitted Actions, unless occurrence and until during the continuance of a default or an event of default in respect of a First Lien Obligation Payment Date has occurredsecured by Other Collateral, the sole right of the Second Priority Representative applicable First Lien Controlling Collateral Parties may take and the other Second Priority Secured Parties continue any Enforcement Action with respect to the First Lien Obligations secured by Other Collateral shall be and with respect to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred Other Collateral in such order and manner as they may determine in accordance with the Second Priority Documents and applicable lawtheir sole discretion.
Appears in 1 contract
Samples: Intercreditor Agreement (Dobson Communications Corp)
Exclusive Enforcement. (a) Until the earlier of the occurrence of the First Priority Obligations Payment Date has occurredor the expiration or other termination of the then current Standstill Period, whether or not an Insolvency Proceeding has been commenced by or against any Loan Credit Party, the First Priority Secured Parties shall have the exclusive right to take and continue take, continue, oppose, or otherwise prosecute, defend, settle or consent to any Enforcement Action with respect to the Common CollateralAction, without any consultation with or consent of any Second Priority Secured Party, provided thatand the Second Priority Secured Parties shall not take any position contrary to the First Priority Secured Parties, or support any other Person who takes any position contrary to the First Priority Secured Parties, with respect to such Enforcement Action (it being understood that any Second Priority Secured Party, notwithstanding the foregoing, may (i) in at any Insolvency Proceeding, any time demand payment of amounts then due and payable pursuant to the terms of the Second Priority Secured Party may Agreement (other than as a result of an acceleration subsequent to an event of default under the Second Priority Agreement) and pursue unsecured lender remedies with regard to any such payments not made under the Second Priority Agreement, (ii) after the expiration of the Standstill Period, demand payment for or accelerate the payment of the Second Priority Loans in accordance with the terms of the Second Priority Documents, (iii) file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to beinterest, (Aiv) adverse to the Liens or the rights of the First Priority Representative 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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any all necessary responsive or defensive pleadings in opposition to any motion, claimclaims, adversary proceeding proceedings or other pleading pleadings made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Common Collateral, and (v) make any filings, arguments or motions or take other actions to preserve or protect its Liens on the Collateral or otherwise make any arguments or file other rights, including to stay any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms statute of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Second Priority Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the “Second Priority Permitted Actions”limitations). Except for Upon the Second Priority Permitted Actions, unless occurrence and until during the First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and in accordance with the Second Priority Documents and applicable law.continuance of
Appears in 1 contract
Samples: Amended and Restated Intercreditor Agreement (RHI Entertainment, Inc.)
Exclusive Enforcement. (a) Until the First Priority Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Secured applicable Senior Enforcement Representative and the Senior Enforcement Parties shall have the exclusive right to take and continue (or refrain from taking or continuing) any Enforcement Action (including the right to credit bid their debt, subject to the penultimate sentence of this Section 3.1) with respect to the Common Collateralapplicable Senior Enforcement Collateral pursuant to the terms of the applicable Security Documents, without any consultation with or consent of any Second Priority Secured Junior Enforcement Party, but subject to the proviso set forth in Section 5.1; provided that, notwithstanding the foregoing, that nothing contained herein shall be construed as preventing any Junior Enforcement Party from taking any action which is reasonably necessary to (i) in any Insolvency Proceeding, any Second Priority Secured Party may file a proof perfect the Junior Enforcement Liens upon the Collateral (other than by possession or “control” (within the meaning of claim the Uniform Commercial Code)) or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to prove, preserve or protect (but not enforce) the validity and enforceability of Junior Enforcement Liens upon the liens on the Second Priority Senior Enforcement Collateral, provided that no so long as such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Representative 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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligationswould not, in each any case, to adversely affect any Senior Enforcement Lien. Upon the extent not inconsistent with occurrence and during the terms continuance of this Agreement; and (iv) subject to Section 3.2a default or an event of default under the applicable Senior Enforcement Documents, the Second Priority applicable Senior Enforcement Representative and the other Second Priority Secured applicable Senior Enforcement Parties may enforce take and continue any of their rights and exercise any of their remedies Enforcement Action with respect to the Second applicable Senior Enforcement Obligations and the applicable Senior Enforcement Collateral in such order and manner as they may determine in their sole discretion in accordance with the terms and conditions of the Senior Enforcement Documents. The Term Loan Representative agrees that all credit bidding of Term Loan Obligations shall be made for the benefit of the Secured Parties as contemplated by Section 4.1(b). At any time the Term Loan Representative is the Other Collateral Senior Enforcement Representative, the Term Loan Secured Parties shall be considered the Senior Enforcement Parties in respect of the Other Collateral solely for purposes of determining whether to take Enforcement Actions, and, for the avoidance of doubt, subject to (x) Section 2.1, (y) the application of Proceeds set forth in Section 4.1 and (z) other provisions of this Agreement that apply to the treatment of Other Collateral as Senior Enforcement Collateral. Notwithstanding anything to the contrary herein and that the SOA shall be considered RCF Priority Collateral after hereunder as an Accounts Receivable Contract, the termination parties hereto acknowledge and agree that this Agreement shall not impair the ability of the Standstill Period (Term Loan Representative to enforce its rights under 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 First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties Vitol Direct Agreement with respect to the Collateral shall be to receive a share SOA (including taking Enforcement Actions in respect of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and in accordance with the Second Priority Documents and applicable lawSOA).
Appears in 1 contract
Samples: Intercreditor Agreement (Global Clean Energy Holdings, Inc.)
Exclusive Enforcement. (a) Until So long as the First Priority Lien Obligations Payment Date has occurredhave not been Paid in Full, whether or not an Insolvency Proceeding has been commenced by or against any Loan PartyGrantor, the First Priority Secured Parties Lien Representative shall (subject to clause (a) below) have the exclusive right to take and continue continue, or not to take, any Enforcement Action with respect to the Common Collateral, without any consultation with or consent of any Second Priority Lien Secured Party, provided thatbut subject to the proviso set forth in Section 5.01, notwithstanding and (a) from the foregoingdate hereof until the occurrence of the Second Lien Enforcement Date (such period, the “Standstill Period”), neither the Second Lien Representative nor any Second Lien Secured Party shall exercise or seek to exercise any rights or remedies (including any right of set-off or recoupment) with respect to any Second Lien Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Second Lien Representative or any Second Lien Secured Party may be a party) or institute or commence (or join with any other Person in commencing) any 9 enforcement, collection, execution, levy or foreclosure action or proceeding (including, without limitation, any Insolvency Proceeding with respect to any Grantor) with respect to any Lien held by it under the Second Lien Collateral Documents or otherwise in respect of the Collateral, and (b) neither the Second Lien Representative nor any Second Lien Secured Party shall (i) in any Insolvency Proceedingcontest, protest or object to, or otherwise interfere with, hinder or delay, any Second Priority foreclosure proceeding or action brought by the First Lien Representative or any First Lien Secured Party may file a proof of claim Party, any rights and remedies relating to the Collateral under the First Lien Collateral Documents or statement of interest with otherwise in respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action isthe respective interests of the Second Lien Secured Parties attach to the proceeds thereof, subject to the relative priorities described in Section 4.01 hereof, or could reasonably be expected to be(ii) contest, (A) adverse protest or object to the Liens forbearance by the First Lien Representative or the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to any Collateral. The Second Lien Representative and each Second Lien Secured Party hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Second Lien Collateral Documents or in the Second Lien Indenture or otherwise shall be deemed to restrict in any way the rights and remedies of the First Priority Lien Representative 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 Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Second Priority 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 First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after as set forth in this Agreement and the First Priority Lien Collateral Documents. Upon the occurrence and during the continuance of a default or an event of default in respect of a First Lien Obligation permitting the First Lien Representative to take any Enforcement Action under any First Lien Collateral Document, the First Lien Representative may take and continue any Enforcement Action with respect to the First Lien Obligations Payment Date has occurred and the Collateral exclusively and in accordance with the Second Priority Documents such order and applicable lawmanner as it may determine in its sole discretion.
Appears in 1 contract
Exclusive Enforcement. (a) Until the First Priority Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the First Priority Senior Secured Parties shall have the exclusive right to take and continue any Enforcement Action (including the right to credit bid their debt) with respect to the Common Senior Collateral, without any consultation with or consent of any Second Priority Junior Secured PartyParty (but subject to the proviso set forth in Section 5.1); provided, provided however, that, the Junior Representative (or any person authorized by it) may commence an Enforcement Action after the passage of a period of one hundred twenty (120) days from the date of delivery of a notice in writing to the Senior Representative of the Junior Representative’s intention to exercise its right to take any such Enforcement Actions (the “Junior Standstill Period”); provided, further, however, that (a) notwithstanding anything herein to the contrary, neither the Junior Representative nor any other Junior Secured Party will exercise any rights or remedies with respect to any Senior Collateral if, notwithstanding the foregoingexpiration of the Junior Standstill Period, the Senior Representative or the other Senior Secured Parties (ior any person authorized by them) in shall have commenced the exercise of any Insolvency Proceeding, any Second Priority Secured Party may file a proof of claim their rights or statement of interest remedies with respect to Second Priority Obligations; all or any material portion of the Senior Collateral (iiprompt notice of such exercise to be given to the Junior Representative) and are reasonably diligently pursuing in good faith the exercise thereof, (b) in the event that at any time after the Junior Representative has sent a notice to the Senior Representative to commence the Junior Standstill Period, the default or event of default under the Junior Documents that was the basis for such notice is cured or waived in accordance with the terms of the applicable Junior Documents, then such notice shall automatically and without further action of the parties be deemed rescinded and no Junior Standstill Period shall be deemed to have been commenced, (c) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Junior Representative or any other First Priority Junior Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this AgreementParty, including the automatic release of Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motionas applicable, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining shall provide written notice to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms Senior Representative promptly upon commencing any exercise of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their or remedies with respect to the Second Priority Senior Collateral, and (d) any Senior Collateral after or any proceeds of Senior Collateral received by the termination Junior Representative or such other Junior Secured Party in connection with any such exercise of rights or remedies with respect to the Standstill Period Senior Collateral (net of documented, reasonable out-of-pocket costs actually incurred in connection with such enforcement and allocable to the actions described enforcement with respect to such Senior Collateral, including reasonable attorneys’ fees and expenses) shall be applied in this proviso being referred to herein as accordance with Section 4.1 hereof. Upon the “Second Priority Permitted Actions”). Except for occurrence and during the Second Priority Permitted Actions, unless and until continuance of a default or an event of default under the First Lien Obligation Payment Date has occurredSenior Documents, the sole right of the Second Priority Senior Representative and the other Second Priority Senior Secured Parties may take and continue any Enforcement Action with respect to the Senior Obligations and the Senior Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred in such order and manner as they may determine in their sole discretion in accordance with the Second Priority Documents terms and applicable lawconditions of the Senior Documents.
Appears in 1 contract
