Common use of Exercise of Remedies, Etc Clause in Contracts

Exercise of Remedies, Etc. (a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) neither the Junior Lien Representative nor any Junior Lien Secured Party will (x) exercise or enforce or seek to exercise or enforce any rights or remedies (including setoff, recoupment and the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral securing both the First Lien Obligations and any Junior Priority Obligations in respect of any applicable Junior Priority Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Collateral or any other collateral by the First Lien Representative or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the First Lien Representative or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the First Lien Representative or any First Lien Secured Party either is a party or may have rights as a third-party beneficiary, the Junior Lien Representative or any Junior Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party of any rights and remedies as a secured party relating to the Collateral or any other collateral under the First Lien Documents or otherwise in respect of First Lien Obligations, or (z) object to any waiver or forbearance by the First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral or any other collateral in respect of First Lien Obligations and (ii) as between the First Lien Representative or First Lien Secured Parties, on one hand, and the Junior Lien Representative or any Junior Lien Secured Party, on the other hand, the First Lien Representative (or any person authorized by it) and the First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff, recoupment and the right to credit bid their debt), marshal, process and make determinations regarding the release, disposition or restrictions, or waiver or forbearance of rights or remedies with respect to the Collateral and will also have the exclusive right to determine and direct the time, method and place for exercising such right or remedies or conducting any proceeding with respect thereto, in each case, without any consultation with or the consent of the Junior Lien Representative or any Junior Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Junior Lien Representative or any Junior Lien Secured Party may file a claim, proof of claim or statement of interest with respect to the Junior Priority Obligations, (B) the Junior Lien Representative or any Junior Lien Secured Party may take any action (not adverse to the prior Liens on the Collateral securing the First Lien Obligations or the rights of the First Lien Representative or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Collateral, (C) to the extent not otherwise inconsistent with or prohibited by this Agreement, the Junior Lien Representative or the Junior Lien Secured Parties may exercise their rights and remedies as unsecured creditors, solely to the extent provided, and as limited, herein, (D) the Junior Lien Representative or the Junior Lien Secured Parties may exercise the rights and remedies provided for in this Agreement with respect to seeking adequate protection in an Insolvency or Liquidation Proceeding (including, without limitation, Section 6.2), and (E) the Junior Lien Representative or the Junior Lien Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Lien Representative or the Junior Lien Secured Parties, including any claims secured by the Collateral, in each case (A) through (E) above to the extent such action is not prohibited by, inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the First Lien Collateral or Collateral, the First Lien Representative and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise any one or more of its or their rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of First Lien Obligations has not occurred, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy or (except as otherwise expressly provided in Section 6) otherwise in an Insolvency or Liquidation Proceeding (including set off, recoupment or the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral in respect of the applicable Junior Priority Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Junior Lien Representative and the Junior Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of the applicable Junior Priority Obligations pursuant to the Junior Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, agrees that neither the Junior Lien Representative nor any Junior Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the First Lien Representative or the First Lien Secured Parties with respect to the Collateral, the First Lien Collateral or any other collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, the First Lien Collateral or such other collateral, whether by foreclosure or otherwise, and (ii) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby waives any and all rights it or any Junior Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Representative or any First Lien Secured Party seeks to enforce or collect the First Lien Obligations or the Liens granted in any of the First Lien Collateral or Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Representative or First Lien Secured Party is adverse to the interests of the Junior Lien Secured Parties. (d) The Junior Lien Representative and each Junior Lien Secured Party hereby acknowledge and agree that no covenant, agreement or restriction contained in any applicable Junior Priority Document shall be deemed to restrict in any way the rights and remedies of the First Lien Representative or any First Lien Secured Parties with respect to the First Lien Collateral or Collateral as set forth in this Agreement and the First Lien Documents. (e) So long as the Discharge of First Lien Obligations has not occurred, neither the Junior Lien Representative nor any other Junior Lien Secured Party may assert or enforce any right of marshalling accorded to a junior lienholder, as against the First Lien Representative or any First Lien Secured Party (in their capacity as priority lienholders). (f) Section 3.1 hereof shall not be construed to in any way limit or impair the right of any Junior Lien Secured Party from exercising a credit bid with respect to the Junior Priority Obligations in a sale or other disposition of Collateral under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, provided that in connection with and immediately after giving effect to such sale and credit bid there occurs a Discharge of First Lien Obligations.

Exercise of Remedies, Etc. (a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) neither none of the Junior Lien Collateral Agent, any Junior Lien Representative nor or any Junior Lien Secured Party will (x) exercise or enforce or seek to exercise or enforce any rights or remedies (including setoff, recoupment setoff and the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral securing both the First Lien Obligations and any Junior Priority Obligations in respect of any applicable Junior Priority Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Collateral or any other collateral by the any First Lien Representative Collateral Agent or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the any First Lien Representative Collateral Agent or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox control agreement, control lockbox agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the First Junior Lien Representative or Collateral Agent, any First Lien Secured Party either is a party or may have rights as a third-party beneficiary, the Junior Lien Representative or any Junior Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party party, of any rights and remedies as a secured party relating to the Collateral or any other collateral under the First Lien Documents or otherwise in respect of First Lien Obligations, or (z) object to any waiver or forbearance by the First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral or any other collateral in respect of First Lien Obligations and (ii) except as otherwise provided herein, as between the any First Lien Representative Collateral Agent or First Lien Secured Parties, on one hand, and the Junior Lien Representative Collateral Agent or any Junior Lien Secured Party, on the other hand, the First Lien Representative (Collateral Agents or any person authorized by it) one of them and the First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff, recoupment setoff and the right to credit bid their debt), marshal, process and make determinations regarding the release, disposition or restrictions, or waiver or forbearance of rights or remedies with respect to the Collateral and will also have the exclusive right to determine and direct the time, method and place for exercising such right or remedies or conducting any proceeding with respect thereto, in each case, without any consultation with or the consent of the Junior Lien Collateral Agent, any Junior Lien Representative or any Junior Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Junior Lien Representative or any Junior Lien Secured Party Collateral Agent may file a claim, proof of claim or statement of interest with respect to the Junior Priority Obligations, Lien Obligations and (B) the Junior Lien Representative or any Junior Lien Secured Party Collateral Agent may take any action (not adverse to the prior Liens on the Collateral securing the First Lien Obligations Obligations, or the rights of the First Lien Representative Collateral Agents or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Collateral, (C) to the extent not otherwise inconsistent with or prohibited by this Agreement, the Junior Lien Representative or the Junior Lien Secured Parties may exercise their rights and remedies as unsecured creditors, solely to the extent provided, and as limited, herein, (D) the Junior Lien Representative or the Junior Lien Secured Parties may exercise the rights and remedies provided for in this Agreement with respect to seeking adequate protection in an Insolvency or Liquidation Proceeding (including, without limitation, Section 6.2), and (E) the Junior Lien Representative or the Junior Lien Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Lien Representative or the Junior Lien Secured Parties, including any claims secured by the Collateral, in each case (A) through (E) above to the extent such action is not prohibited by, inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the First Lien Collateral or Collateral, the First Lien Representative Collateral Agents and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise any one or more of its or their rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of First Lien Obligations has not occurred, each of the Junior Lien Collateral Agent and each Junior Lien Representative, on behalf of itself and each applicable Junior Lien Secured Party, agrees that it will not not, in the context of its role as secured lender, take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy or (except as otherwise expressly provided in Section 6) otherwise in an Insolvency or Liquidation Proceeding (including set off, recoupment off or the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral in respect of the applicable Junior Priority Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Junior Lien Representative Collateral Agent, the Junior Lien Representatives and the Junior Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of the applicable Junior Priority Lien Obligations pursuant to the Junior Priority Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) the Junior Lien RepresentativeCollateral Agent, for itself and on behalf of each Junior Lien Secured Party, agrees that neither none of the Junior Lien Collateral Agent, any Junior Lien Representative nor or any Junior Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the any First Lien Representative Collateral Agent or the First Lien Secured Parties with respect to the Collateral, the First Lien Collateral or any other collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, the First Lien Collateral or such other collateral, whether by foreclosure or otherwise, and (ii) the Junior Lien Collateral Agent and each Junior Lien Representative, for itself and on behalf of each applicable Junior Lien Secured Party, hereby waives any and all rights it or any Junior Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the any First Lien Representative Collateral Agent or any First Lien Secured Party seeks to enforce or collect the First Lien Obligations or the Liens granted in any of the First Lien Collateral or Collateral, regardless of whether any action or failure to act by or on behalf of the any First Lien Representative Collateral Agent or First Lien Secured Party is adverse to the interests of the Junior Lien Secured Parties. (d) The Junior Lien Collateral Agent, each Junior Lien Representative and each Junior Lien Secured Party hereby acknowledge and agree that no covenant, agreement or restriction contained in any applicable Junior Priority Lien Document shall be deemed to restrict in any way the rights and remedies of the any First Lien Representative Collateral Agent or any First Lien Secured Parties with respect to the First Lien Collateral or Collateral as set forth in this Agreement and the First Lien Documents. (e) So long as the Discharge of First Lien Obligations has not occurred, neither none of the Junior Lien Collateral Agent, any other Junior Lien Representative nor or any other Junior Lien Secured Party may assert or enforce any right of marshalling accorded to a junior lienholder, as against the any First Lien Representative Collateral Agent or any First Lien Secured Party (in their capacity as priority lienholders). (f) Section 3.1 hereof shall not be construed to in any way limit or impair the right of any Junior Lien Secured Party from exercising a credit bid with respect to the Junior Priority Lien Obligations in a sale or other disposition of Collateral under Section 363(k) 363 of the Bankruptcy Code or any similar provision of any Bankruptcy LawCode, provided that in connection with and immediately after giving effect to such sale and credit bid there occurs a Discharge of First Lien Obligations.

Exercise of Remedies, Etc. (a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) neither the Junior Lien Representative nor any Junior Lien Secured Party will (x) exercise or enforce or seek to exercise or enforce any rights or remedies (including setoff, recoupment and the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral securing both the First Lien Obligations and any Junior Priority Lien Obligations in respect of any applicable Junior Priority Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Collateral or any other collateral by the First Lien Representative or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the First Lien Representative or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the First Lien Representative or any First Lien Secured Party either is a party or may have rights as a third-party beneficiary, the Junior Lien Representative or any Junior Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party of any rights and remedies as a secured party relating to the Collateral or any other collateral under the First Lien Documents or otherwise in respect of First Lien Obligations, or (z) object to any waiver or forbearance by the First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral or any other collateral in respect of First Lien Obligations and (ii) as between the First Lien Representative or First Lien Secured Parties, on one hand, and the Junior Lien Representative or any Junior Lien Secured Party, on the other hand, the First Lien Representative (or any person authorized by it) and the First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff, recoupment and the right to credit bid their debt), marshal, process and make determinations regarding the release, disposition or restrictions, or waiver or forbearance of rights or remedies with respect to the Collateral and will also have the exclusive right to determine and direct the time, method and place for exercising such right or remedies or conducting any proceeding with respect thereto, in each case, without any consultation with or the consent of the Junior Lien Representative or any Junior Lien Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Junior Lien Representative or any Junior Lien Secured Party may file a claim, proof of claim or statement of interest with respect to the Junior Priority Lien Obligations, (B) the Junior Lien Representative or any Junior Lien Secured Party may take any action (not adverse to the prior Liens on the Collateral securing the First Lien Obligations or the rights of the First Lien Representative or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Collateral, (C) to the extent not otherwise inconsistent with or prohibited by the this Agreement, the Junior Lien Representative or the Junior Lien Secured Parties may exercise their rights and remedies as unsecured creditors, solely to the extent provided, and as limited, herein, (D) the Junior Lien Representative or the Junior Lien Secured Parties may exercise the rights and remedies provided for in this Agreement with respect to seeking adequate protection in an Insolvency or Liquidation Proceeding (including, without limitation, Section 6.2)Proceeding, and (E) the Junior Lien Representative or the Junior Lien Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Lien Representative or the Junior Lien Secured Parties, including any claims secured by the Collateral, in each case (A) through (E) above to the extent such action is not prohibited by, inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the First Lien Collateral or Collateral, the First Lien Representative and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise any one or more of its or their rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (b) So long as the Discharge of First Lien Obligations has not occurred, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy or (except as otherwise expressly provided in Section 6) otherwise in an Insolvency or Liquidation Proceeding (including set off, recoupment or the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral in respect of the applicable Junior Priority Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Junior Lien Representative and the Junior Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of the applicable Junior Priority Lien Obligations pursuant to the Junior Priority Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred. (c) Subject to the proviso in clause (ii) of Section 3.1(a), (i) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, agrees that neither the Junior Lien Representative nor any Junior Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the First Lien Representative or the First Lien Secured Parties with respect to the Collateral, the First Lien Collateral or any other collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, the First Lien Collateral or such other collateral, whether by foreclosure or otherwise, and (ii) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby waives any and all rights it or any Junior Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Representative or any First Lien Secured Party seeks to enforce or collect the First Lien Obligations or the Liens granted in any of the First Lien Collateral or Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Representative or First Lien Secured Party is adverse to the interests of the Junior Lien Secured Parties. (d) The Junior Lien Representative and each Junior Lien Secured Party hereby acknowledge and agree that no covenant, agreement or restriction contained in any applicable Junior Priority Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Representative or any First Lien Secured Parties with respect to the First Lien Collateral or Collateral as set forth in this Agreement and the First Lien Documents. (e) So long as the Discharge of First Lien Obligations has not occurred, neither the Junior Lien Representative nor any other Junior Lien Secured Party may assert or enforce any right of marshalling accorded to a junior lienholder, as against the First Lien Representative or any First Lien Secured Party (in their capacity as priority lienholders). (f) Section 3.1 hereof shall not be construed to in any way limit or impair the right of any Junior Lien Secured Party from exercising a credit bid with respect to the Junior Priority Lien Obligations in a sale or other disposition of Collateral under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, provided that in connection with and immediately after giving effect to such sale and credit bid there occurs a Discharge of First Lien Obligations.