Common use of Exclusive Enforcement Clause in Contracts

Exclusive Enforcement. Until the Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the 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 Senior Collateral, without any consultation with or consent of any Junior Secured Party, but subject to the provisos set forth in Sections 3.2 and 5.1; provided that, the Liens securing the Junior Obligations shall, subject to the subordination provisions set forth herein, remain on the Proceeds of such Senior Collateral released or disposed of pursuant to any Enforcement Action. Upon the occurrence and during the continuance of a default or an event of default under the Senior Documents, the Senior Representative and the other Senior Secured Parties may take and continue any Enforcement Action with respect to the Senior Obligations and the Senior Collateral in such order and manner as they may determine in their reasonable discretion in accordance with the terms and conditions of the Senior Documents. To the extent reasonably practicable in the Senior Representative’s commercially reasonable determination, the Senior Representative agrees to provide at least five (5) days’ prior written notice to the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take any Enforcement Action. In the event that during such five (5) day period, any Junior Secured Party shall send to the Senior Representative notice of such Junior Secured Party’s intention to exercise the purchase option under Section 7 hereof, neither the Senior Representative nor any other Senior Secured Party shall exercise or enforce any of its rights or remedies with respect to the Collateral; provided that such purchase of the Senior Obligations shall have closed within twenty (20) days thereafter at the price set forth in Section 7.

Exclusive Enforcement. (a) At any time prior to the Discharge of First Priority Obligations, whether or not an Insolvency Proceeding has been commenced by or against the Borrower or any Grantor, the First Priority Representative on behalf of the First Priority Secured Parties shall have the exclusive right to exercise any right or remedy with respect to the Common Collateral and will also have the exclusive right to determine the time and method and place for exercising such right or remedy or conducting any proceeding with respect thereto. So long as the Discharge of First Priority Obligations has not occurred, whether or not an Insolvency Proceeding has been commenced by or against the Borrower or any Grantor, no Second Priority Secured Party will be permitted to commence or maintain an enforcement action with respect to any Common Collateral; provided that the Second Priority Representative may commence an enforcement action after the passage of 150 days after the earlier of (x) the date on which the Second Priority Obligations shall have become due and payable by acceleration upon the occurrence and during the continuance of an Event of Default under and in accordance with the applicable Second Priority Documents and (y) the date on which the First Priority Representative received notice from the Second Lien Agent, the Second Lien Collateral Agent or such other agent or collateral agent or trustee of Second Priority Obligations of any such Person’s intention to exercise any rights or remedies with respect to any Second Priority Collateral after the occurrence and during the continuance of an Event of Default under the Second Priority Documents (the “Standstill Period”); provided, however, that if the First Priority Representative or any First Priority Collateral Agent on behalf of any First Priority Obligations shall have commenced and be diligently pursuing in good faith an Enforcement Action with respect to the Common Collateral, the Second Priority Representative, the Second Lien Agent, the Second Lien Collateral Agent or any agent or collateral agent or trustee of any Second Priority Obligations shall not commence or continue an Enforcement Action. The First Priority Secured Parties are under no obligation to consult with any Second Priority Secured Party at any time prior to or when exercising their rights and remedies with respect to the Common Collateral. (b) Until the Senior Discharge of the First Priority Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against the Borrower or any Loan PartyGrantor, subject to Section 3.1(a), the Senior Secured Parties First Lien Representative shall have the exclusive right to take enforce rights, exercise remedies and continue any Enforcement Action (including make determinations regarding the right to credit bid their debt) release with respect to the Senior Collateral, Common Collateral without any consultation with or the consent of any Junior the Second Priority Secured Party, but Parties; provided that the Lien securing the Second Priority Obligations shall remain on the proceeds of such Common Collateral released subject to the provisos relative priorities set forth in Sections 3.2 this Agreement. In exercising rights and 5.1; provided that, the Liens securing the Junior Obligations shall, subject to the subordination provisions set forth herein, remain on the Proceeds of such Senior Collateral released or disposed of pursuant to any Enforcement Action. Upon the occurrence and during the continuance of a default or an event of default under the Senior Documents, the Senior Representative and the other Senior Secured Parties may take and continue any Enforcement Action remedies with respect to the Senior Obligations Common Collateral, the First Priority Representative may enforce the provisions of the First Priority Documents and the Senior Collateral exercise remedies thereunder, all in such order and in such manner as they it may determine in their reasonable discretion the exercise of its sole discretion. Notwithstanding the foregoing contained in accordance with this Section 3.1, the terms and conditions Second Priority Secured Parties may: (1) take any action (not adverse to the priority status of the Senior Documents. To First Priority Liens on the extent reasonably practicable Common Collateral, or the rights of any First Priority Secured Parties to exercise remedies in respect thereof or the Senior Representative’s commercially reasonable determinationagreements set forth in Section 2) in order to create, perfect, preserve or protect the Second Priority Liens on the Common Collateral; (2) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Common Collateral, if any, in each case in a manner that is not inconsistent with, or in contravention of, the Senior Representative agrees express terms of this Agreement; (3) file any pleadings, objections, motions or agreements or take any positions that assert rights or interests available to provide at least five unsecured creditors of the Grantors arising under either any Insolvency Proceeding or applicable non-bankruptcy law, in each case in a manner that is not inconsistent with, or in contravention of, the express terms of this Agreement; (4) vote on any plan of reorganization, file any proof of claim or statement of interest, make other filings and make any arguments and motions that are, in each case, not inconsistent with, or in contravention of, the express terms of this Agreement; (5) days’ prior written notice to the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take any Enforcement Action. In the event that during such five (5) day period, any Junior Secured Party shall send to the Senior Representative notice of such Junior Secured Party’s intention to exercise the purchase option under Section 7 hereof, neither the Senior Representative nor any other Senior Secured Party shall exercise or enforce any of its rights or remedies with respect to the Collateral; provided that such purchase Common Collateral after the termination of the Senior Obligations shall have closed within twenty Standstill Period to the extent permitted by this Section 3.1; (206) days thereafter present a cash or credit bid (in the case of any such credit bid, so long as such bid provides for the Discharge of First Priority Obligations) at any section 363 hearing or with respect to any other Common Collateral disposition; and (7) bid for or purchase Common Collateral at any private or judicial foreclosure upon such Common Collateral initiated by any of the price set forth in Section 7First Priority Secured Parties.

Exclusive Enforcement. Until (a) Subject to the Senior proviso set forth in Section 3.2(a), until the ABL Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the Senior ABL 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 Senior ABL Priority Collateral, without any consultation with or consent of any Junior Term Loan Secured Party, but subject to the provisos set forth Party except as otherwise expressly provided for in Sections 3.2 and 5.1this Agreement; provided thatthat nothing contained herein shall be construed as preventing the Term Loan Agent or any Term Loan Secured Party from taking any action which is reasonably necessary to (i) perfect the Term Loan Liens upon the ABL Priority 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 Term Loan Liens securing upon the Junior Obligations shallABL Priority Collateral, subject to the subordination provisions set forth hereinso long as such action would not, remain on the Proceeds of such Senior Collateral released or disposed of pursuant to in any Enforcement Actioncase, adversely affect any ABL Lien. Upon the occurrence and during the continuance of a default or an event of default under the Senior ABL Documents, the Senior Representative ABL Agent and the other Senior ABL Secured Parties may take and continue any Enforcement Action with respect to the Senior ABL Obligations and the Senior ABL Priority Collateral in such order and manner as they may determine in their reasonable discretion sole discretion. (b) Subject to the proviso set forth in accordance with Section 3.2(b), until the terms and conditions of the Senior Documents. To the extent reasonably practicable in the Senior Representative’s commercially reasonable determinationTerm Loan Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the Senior Representative agrees Term Loan Secured Parties shall have the exclusive right to provide at least five (5) days’ prior written notice to the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take and continue any Enforcement Action. In the event that during such five (5) day period, any Junior Secured Party shall send to the Senior Representative notice of such Junior Secured Party’s intention to exercise the purchase option under Section 7 hereof, neither the Senior Representative nor any other Senior Secured Party shall exercise or enforce any of its rights or remedies Action with respect to the Term Loan Priority Collateral, without any consultation with or consent of any ABL Secured Party except as otherwise expressly provided for in this Agreement; provided that such purchase nothing contained herein shall be construed as preventing the ABL Agent or any ABL Secured Party from taking any action which is reasonably necessary to (i) perfect the ABL Liens upon the Term Loan Priority Collateral (other than by possession or “control” (within the meaning of the Senior Uniform Commercial Code)) or (ii) prove, preserve or protect (but not enforce) the ABL Liens upon the Term Loan Priority Collateral, so long as such action would not, in any case, adversely affect any Term Loan Lien. Upon the occurrence and during the continuance of a default or an event of default under the Term Loan Documents, the Term Loan Agent and the other Term Loan Secured Parties may take and continue any Enforcement Action with respect to the Term Loan Obligations shall have closed within twenty (20) days thereafter at and the price set forth Term Loan Priority Collateral in Section 7such order and manner as they may determine in their sole discretion.

Exclusive Enforcement. Until (a) With respect to each Type of Common Collateral, until the Senior First Priority Obligations Payment Date has occurredDate, whether or not an Insolvency Proceeding has been commenced by or against any Loan PartyGrantor, the Senior First Priority Secured 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) with respect to the Senior such Common Collateral, without any consultation with or consent of any Junior Second Priority Secured Party, but subject Party with respect to such Common Collateral; provided that the Second Priority Secured Parties with respect to any Common Collateral may exercise credit bidding rights with respect to such Common Collateral to the provisos set forth in Sections 3.2 and 5.1; provided thatextent expressly permitted under Section 5.6(a). With respect to each Type of Common Collateral, the Liens securing the Junior Obligations shall, subject to the subordination provisions set forth herein, remain on the Proceeds of such Senior Collateral released or disposed of pursuant to any Enforcement Action. Upon upon the occurrence and during the continuance of a default or an event of default under the Senior First Priority Documents (and subject to the provisions of the First Priority Documents), the Senior First Priority Representative and the other Senior First Priority Secured Parties may take and continue any Enforcement Action with respect to the Senior applicable First Priority Obligations and the Senior such Common Collateral in such order and manner as they may determine in their reasonable discretion in accordance sole discretion. (b) Notwithstanding Section 3.1(a), with the terms and conditions respect to each Type of the Senior Documents. To the extent reasonably practicable in the Senior Representative’s commercially reasonable determinationCommon Collateral, the Senior Second Priority Representative agrees to provide at least five (5) days’ prior written notice to and the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take any Enforcement Action. In the event that during such five (5) day period, any Junior Second Priority Secured Party shall send to the Senior Representative notice of such Junior Secured Party’s intention to exercise the purchase option under Section 7 hereof, neither the Senior Representative nor any other Senior Secured Party shall exercise or Parties may enforce any of its their rights and exercise any of their remedies with respect to the Common Collateral after a period of 180 days has elapsed since the date on which the Second Priority Representative has delivered to the First Priority Representative written notice of the acceleration or non-payment at maturity of the indebtedness then outstanding under the Second Priority Documents (the “Second Priority Standstill Period”); provided, that, notwithstanding the expiration of the Second Priority Standstill Period or anything to the contrary herein, with respect to each Type of Common Collateral, in no event shall the Second Priority Representative or any other Second Priority Secured Party enforce or exercise any rights or remedies with respect to such Common Collateral if the Collateral; provided that such purchase First Priority Representative or any other First Priority Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from or modification of the Senior automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to all or a material portion of such Common Collateral (prompt written notice thereof to be given to the Second Priority Representative by the First Priority Representative). If any stay or other order prohibiting the exercise of remedies with respect to any Type of Common Collateral has been entered in connection with any Insolvency Proceeding or by a court of competent jurisdiction, the Second Priority Standstill Period with respect to such Common Collateral shall be tolled during the pendency of any such stay or other order. (c) It is understood that Sections 3.1(a) and 3.1(b) do not restrict the following: (i) in any Insolvency Proceeding commenced by or against any Grantor, the Second Priority Representative with respect to each Type of Common Collateral may file a claim or statement of interest with respect to such Type of Common Collateral; (ii) the Second Priority Representative with respect to each Type of Common Collateral may take any action (not adverse to the priority or perfection status of the Liens securing the First Priority Obligations with respect to each Type of Common Collateral, or the rights of the First Priority Representative or the First Priority Secured Parties with respect to such Type of Common Collateral to exercise remedies in respect thereof) in order to create, preserve, perfect or protect (but not enforce) the Second Priority Lien on such Type of Common Collateral; (iii) the Second Priority Secured Parties with respect to each Type of Common Collateral shall have closed within twenty be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties with respect to such Type of Common Collateral, if any, in each case to the extent not inconsistent with the terms of this Agreement; (20iv) days thereafter at the price set forth Second Priority Secured Parties with respect to each Type of Common Collateral shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any bankruptcy, insolvency or similar law or applicable non-bankruptcy law, in Section 7each case to the extent not inconsistent with the terms of this Agreement; and (v) the Second Priority Secured Parties with respect to each Type of Common Collateral shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency Proceeding or otherwise and make any arguments and motions that are, in each case, to the extent not inconsistent with the terms of this Agreement.

Exclusive Enforcement. Until the Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the 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 Senior Collateral, without any consultation with or consent of any Junior Secured Party, Party (but subject to the provisos proviso set forth in Sections 3.2 and Section 5.1); provided provided, however, that, the Liens securing 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 Obligations shallRepresentative’s intention to exercise its right to take any such Enforcement Actions (the “Junior Standstill Period”); provided, subject further, however, that (a) notwithstanding anything herein to the subordination provisions set forth hereincontrary, remain on neither the Proceeds Junior Representative nor any other Junior Secured Party will exercise any rights or remedies with respect to any Senior Collateral if, notwithstanding the expiration of the Junior Standstill Period, the Senior Representative or the other Senior Secured Parties (or any person authorized by them) shall have commenced the exercise of any of their rights or remedies with respect to all or any material portion of the Senior Collateral (prompt 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 Junior Representative or any other Junior Secured Party, as applicable, shall provide written notice to the Senior Representative promptly upon commencing any exercise of rights or remedies with respect to the Senior Collateral, and (d) any Senior Collateral released or disposed any proceeds of pursuant Senior Collateral received by the Junior Representative or such other Junior Secured Party in connection with any such exercise of rights or remedies with respect to any Enforcement Actionthe Senior Collateral (net of documented, reasonable out-of-pocket costs actually incurred in connection with such enforcement and allocable to the enforcement with respect to such Senior Collateral, including reasonable attorneys’ fees and expenses) shall be applied in accordance with Section 4.1 hereof. Upon the occurrence and during the continuance of a default or an event of default under the Senior Documents, the Senior Representative and the other Senior Secured Parties may take and continue any Enforcement Action with respect to the Senior Obligations and the Senior Collateral in such order and manner as they may determine in their reasonable sole discretion in accordance with the terms and conditions of the Senior Documents. To the extent reasonably practicable in the Senior Representative’s commercially reasonable determination, the Senior Representative agrees to provide at least five (5) days’ prior written notice to the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take any Enforcement Action. In the event that during such five (5) day period, any Junior Secured Party shall send to the Senior Representative notice of such Junior Secured Party’s intention to exercise the purchase option under Section 7 hereof, neither the Senior Representative nor any other Senior Secured Party shall exercise or enforce any of its rights or remedies with respect to the Collateral; provided that such purchase of the Senior Obligations shall have closed within twenty (20) days thereafter at the price set forth in Section 7.

Exclusive Enforcement. Until (a) No Subordinated Creditor shall take, exercise or otherwise prosecute any action as an unsecured creditor with respect to the Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, Collateral (subject to the proviso at the end of Section 5.2). The Senior Secured Parties Creditors shall have the exclusive right to take and continue take, continue, oppose, or otherwise prosecute, defend, settle or consent to any Enforcement Action (including the right to credit bid their debt) with respect to the Senior Collateral, without any consultation with or consent of any Junior Secured PartySubordinated Creditor and the Subordinated Creditors shall not take any position contrary to the Senior Creditors, or support any other Person who takes any position contrary to the Senior Creditors, with respect to such Enforcement Action, but subject to the provisos proviso set forth in Sections 3.2 and 5.1; provided that, the Liens securing the Junior Obligations shall, subject to the subordination provisions set forth herein, remain on the Proceeds of such Senior Collateral released or disposed of pursuant to any Enforcement ActionSection 7.1. Upon the occurrence and during the continuance of a default Senior Default or an event which with notice and/or passage of default under the time would constitute a Senior DocumentsDefault, the Senior Representative Agent and the other Senior Secured Parties Creditors may take and continue any Enforcement Action with respect to the Senior Obligations and the Senior Collateral in such order and manner as they may determine in their reasonable discretion in accordance with the terms and conditions sole discretion. (b) Each of the Senior Documents. To the extent reasonably practicable in parties hereto acknowledges and agrees that the Senior Representative’s Collateral is a unique asset of the Borrower and the other Loan Parties the value of which is not readily ascertainable. In particular, the parties hereto acknowledge and agree that it will be commercially reasonable determination, and sufficient for purposes of Article 9 of the UCC and applicable law for the Senior Representative agrees Agent to provide at least five (5) days’ prior written notice to commence an Enforcement Action based upon any valuations or other financial information prepared by a third party and passed on by the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take any Enforcement Action. In the event that during such five (5) day period, any Junior Secured Party shall send Borrower to the Senior Representative notice of such Junior Secured Party’s intention to exercise the purchase option under Section 7 hereof, neither the Senior Representative nor any other Senior Secured Party shall exercise or enforce any of its rights or remedies with respect to the Collateral; provided that such purchase of the Senior Obligations shall have closed within twenty (20) days thereafter at the price set forth in Section 7Agent.

Exclusive Enforcement. (a) Until the Senior Obligations Payment Date has occurredhave been Paid in Full, whether or not an Insolvency Proceeding has been commenced by or against any Loan PartyGrantor, the Senior Secured Parties Representative shall have the exclusive right to take and continue (or refrain from taking and continuing) any Enforcement Action (including the right to credit bid their debt) with respect to the its Senior CollateralPriority Collateral as it may determine in its sole discretion, without any consultation with or consent of any Junior Secured Party, but subject Party with respect to the provisos set forth in Sections 3.2 and 5.1; provided that, the Liens securing the Junior Obligations shall, subject to the subordination provisions set forth herein, remain on the Proceeds of such Senior Collateral released or disposed of pursuant to any Enforcement ActionPriority Collateral. Upon the occurrence and during the continuance of a default or an event Senior Event of default under Default (and subject to the provisions of the Senior Facility Documents), the Senior Representative and the other Senior Secured Parties may take and continue any Enforcement Action with respect to the Senior Obligations and the Senior Priority Collateral in such order and manner as they may determine in their reasonable discretion in accordance with the terms and conditions of the Senior Documents. To the extent reasonably practicable in the Senior Representative’s commercially reasonable determinationsole discretion. (b) Notwithstanding Section 3.1(a), the Senior Representative agrees to provide at least five (5) days’ prior written notice to the Junior Representative of its intention to foreclose upon or dispose of any Collateral or take any Enforcement Action. In and the event that during such five (5) day period, any other Junior Secured Party shall send Parties may enforce any of their rights and exercise any of their remedies with respect to the Senior Priority Collateral after a period of 120 days has elapsed since the date on which the Junior Representative has delivered to the Senior Representative written notice of such the acceleration or non-payment at maturity of the indebtedness then outstanding under the Junior Facility Documents (the “Junior Standstill Period”); provided that, notwithstanding the expiration of the Junior Standstill Period or anything to the contrary herein, in no event shall the Junior Representative or any other Junior Secured Party’s intention Party enforce or exercise any rights or remedies with respect to exercise the purchase option under Section 7 hereof, neither Senior Priority Collateral if the Senior Representative nor or any other Senior Secured Party shall have commenced, and shall be diligently pursuing the enforcement or exercise of any rights or enforce remedies with respect to the Senior Priority Collateral; provided further that the Junior Standstill Period shall be stayed, tolled and deemed not to have expired during the pendency of any Insolvency Proceeding or during any period of time for which any stay or other order prohibiting the exercise of remedies with respect to any Senior Priority Collateral has been entered by a court of competent jurisdiction and is in effect. (c) It is understood and agreed that Section 3.1(a) and Section 3.1(b) do not restrict the following: (i) in any Insolvency Proceeding commenced by or against any Grantor, the Senior Representative or Junior Representative may file a proof of claim or statement of interest; (ii) the Junior Representative may take any action (solely to the extent not adverse to the prior Liens securing the Senior Obligations or the rights of the Senior Representative or the Senior Secured Parties to exercise remedies in respect thereof) in order to preserve, perfect or protect (but not enforce) its Junior Lien; (iii) each of the Senior Representative and Junior Representative shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the respective Secured Parties, if any, in each case in accordance with the terms of this Agreement; (iv) each of the Senior Representative and Junior Representative shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors or secured creditors of the Grantors with respect to the Common Collateral arising under either any bankruptcy, insolvency or similar law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement; (v) the Junior Representative shall be entitled to exercise any of its rights or remedies with respect to any of the CollateralCommon Collateral after the termination of the Junior Standstill Period to the extent permitted by Section 3.1(b); and (vi) the Junior Representative and the other Junior Secured Parties may make a bid on all, or any portion of, the Common Collateral in any bankruptcy or non-bankruptcy auction or foreclosure proceeding or action; provided that that, the cash portion of any such purchase of bid is sufficient for the Senior Obligations shall have closed within twenty (20) days thereafter at the price set forth to be Paid in Section 7Full.