Exercise of Rights and Remedies. At any time prior to the Discharge of Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower or any of the Pulitzer Entities that own Shared Collateral, (A) the Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties with respect to the Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect to the Shared Collateral; provided, however, that (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateral.

Appears in 2 contracts

Samples: Intercreditor Agreement (Lee Enterprises, Inc), First Lien Credit Agreement (Lee Enterprises, Inc)

Appears in 2 contracts

Samples: Third Lien Subordinated Exchange Note Exchange Agreement (Navation, Inc.), Third Lien Subordinated Exchange Note Exchange Agreement (Manchester Financial Group, LP)

Appears in 1 contract

Samples: Third Lien Subordinated Exchange Note Exchange Agreement (NextWave Wireless Inc.)

Exercise of Rights and Remedies. ~~At any time prior~~ (a) Subject to subsection (b) below, so long as the Discharge of ~~Priority Payment~~ First Lien Obligations ~~and~~ has not occurred, whether or not an any Insolvency or Liquidation Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of~~ First Lien Agents and, subject to the ~~Pulitzer Entities that own Shared Collateral~~First Lien Intercreditor Agreement, ~~(A)~~ the ~~Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment~~ other First Lien ~~Obligations~~ Secured Parties, shall have the exclusive right to take, commence or seek to commence and maintain or seek to maintain any Collateral Enforcement Action and may do so, in each case, without any consultation with or the consent of any Second Lien Collateral Agent or any other Second Lien Secured Party. (b) Except for the Second Lien Permitted Actions, which for the avoidance of doubt shall be allowed to be taken by any Second Lien Collateral Agent, acting on the instructions of the Applicable Second Lien Representative, unless and until the Discharge of First Lien Obligations has occurred, the Second Lien Collateral Agents and the other Second Lien Secured Parties will not (i) commence (or file with any court documents that seek to commence) or maintain or seek to maintain any Collateral Enforcement Action or (ii) commence (or file with any court documents that seek to commence) or join with any Person (other than a First Lien Collateral Agent) in commencing, or petition or vote in favor of any resolution for, any action or proceeding with respect to any Collateral Enforcement Action with respect to the Shared Collateral without the written consent of the Applicable First Lien Representative; provided that any Second Lien Collateral Agent, acting on the instruction of the Applicable Second Lien Representative, may exercise any Collateral Enforcement Action (other than any remedies the exercise of which is otherwise prohibited by this Agreement) after a period of [180]4 consecutive days has elapsed from the later of (i) the date of delivery of written notice by the Applicable Second Lien Representative to each First Lien Agent, certifying that such Person is the Applicable Second Lien Representative, stating that a Second Lien Event of Default with respect to any Series of Second Lien Obligations has occurred and is continuing and that such Second Lien Obligations are currently due and payable in full (whether as a result of acceleration or otherwise) and stating its intention to exercise a Collateral Enforcement Action and (ii) the actual occurrence of a Second Lien Event of Default of such Series of Second Lien Obligations and such Second Lien Obligations under the applicable Second Lien Credit Documents being due and payable in full (the “Junior Standstill Period”), and then such Second Lien Collateral Agent and Second Lien Secured Parties may exercise any Collateral Enforcement Action only so long as (A) no First Lien Secured Party shall have commenced (or attempted to commence or given notice of its intent to commence) any Collateral Enforcement Action with respect to the Shared Collateral (including seeking relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) and is diligently pursuing the same, and such Second Lien Collateral Agent and/or Second Lien Secured Party has notice of such commencement or attempt to commence and (B) no Grantor which has granted a Lien on 4 NTD: This number may be such other number of days as Holdings, the Applicable First Lien Representative and the Initial Second Lien Representative may agree upon. Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. (c) Except as expressly set forth in this Agreement, each First Lien Agent and First Lien Secured Party and, without limiting and subject to Sections 3.01(b) and 3.02 and the other limitations on such action set forth herein, each Second Lien Collateral Agent and Second Lien Secured Party shall have any and all rights and remedies it may have as a creditor under applicable law, including the right to take Collateral Enforcement Action (except as may be separately otherwise agreed in writing by and between or among any applicable Parties, solely as among such Parties and the creditors represented thereby); provided that the exercise of Collateral Enforcement Action with respect to the Shared Collateral shall be subject to the Lien Priority and to the provisions of this Agreement. Each First Lien Agent and First Lien Secured Party may enforce the provisions of the applicable First Lien Credit Documents, each Second Lien Collateral Agent and Second Lien Secured Party may enforce the provisions of the applicable Second Lien Credit Documents, and each First Lien Agent, First Lien Secured Party, Second Lien Collateral Agent and Second Lien Secured Party may exercise Collateral Enforcement Action, all in such order and in such manner as each may determine in the exercise of its sole discretion, but in any case consistent with the terms of this Agreement, any other applicable intercreditor agreement and mandatory provisions of applicable law (except as may be separately otherwise agreed in writing by and between or among any applicable Parties, solely as among such Parties and the Secured Parties represented thereby). Each First Lien Collateral Agent shall provide each Second Lien Collateral Agent and the Applicable Second Lien Representative reasonable prior notice of its initial material Collateral Enforcement Action. Each Second Lien Collateral Agent shall provide each First Lien Agent reasonable prior written notice of its initial material Collateral Enforcement Action. (d) Each Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Credit Document shall be deemed to restrict in any way the rights and remedies of the First Lien Agents or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Lien Credit Documents. (e) In connection with any Collateral Enforcement Action, each Secured Party and each Collateral Agent representing that Secured Party, solely as among themselves in such capacity and solely for their mutual benefit, hereby agree that (i) each First Lien Collateral Agent shall only take, direct or exercise any right or remedy with respect to the First Lien Collateral as set forth in the First Lien Intercreditor Agreement and (ii) each Second Lien Collateral Agent shall only take, direct or exercise any ~~Shared 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 and (B) none of the Secured Parties~~ with respect to the ~~Pari Passu~~ Second Lien ~~Obligations may commence or maintain any Enforcement Action with respect to~~ Collateral on the ~~Shared Collateral; provided, however, that (i) the Collateral Agent~~ instructions of the ~~Pari Passu~~ Applicable Second Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared CollateralRepresentative.

Appears in 1 contract

Samples: Indenture (Pactiv Evergreen Inc.)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) So long as the Discharge of ~~Priority Payment Lien~~ Revolving Facility Obligations ~~and~~ has not occurred, whether or not an any Insolvency Proceeding has ~~commenced by or against the Borrower or any of the Pulitzer Entities that own Shared Collateral~~been commenced, ~~(A)~~ the Revolving ~~Collateral~~ Facility Administrative Agent and ~~any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ the other Revolving Facility Secured Parties shall have the exclusive right to ~~exercise~~ (i) commence and maintain any ~~right or remedy~~ Enforcement Action, and (ii) otherwise enforce the rights and remedies of a secured creditor under the UCC with respect to the Shared Collateral, under the mortgage laws and Bankruptcy Laws of any applicable jurisdiction with respect to the Shared Collateral, so long as any proceeds of Shared Collateral received by the Revolving Facility Administrative Agent are distributed in accordance with the UCC and ~~will also have~~ applicable law, and in accordance with Section 4.01, without any consultation with or the ~~exclusive right to determine~~ consent of the ~~time~~ Term Facility Administrative Agent or any other Term Facility Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency Proceeding, the Term Facility Administrative Agent and ~~method and place for exercising such right~~ any Term Facility Secured Party may file a proof of claim or ~~remedy or conducting any proceeding~~ statement of interest with respect ~~thereto~~ to the Term Facility Obligations; (ii) the Term Facility Administrative Agent may take any action to preserve or protect the validity and enforceability of the Term Facility Liens on the Shared Collateral, provided that no such action is inconsistent with the terms of this Agreement; (iii) the Term Facility 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 or Liens of the Term Facility Secured Parties, including any claims secured by the Shared Collateral or otherwise make any agreements or file any motions pertaining to the Term Facility Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Term Facility Secured Parties may exercise rights and remedies as unsecured creditors as provided in Section 3.03; (v) the Term Facility Secured Parties may (A) present a cash bid for Shared Collateral or purchase Shared Collateral for cash at any Section 363 hearing or at any public or judicial foreclosure sale and (B) ~~none~~ credit bid for Shared Collateral pursuant to Section 363(k) or Section 1129(b)(2(A)(ii) of the Bankruptcy Code (provided that such credit bid may only be made if the Discharge of Revolving Facility Obligations has occurred or will occur concurrently as a result of a cash bid for such Shared Collateral in addition to such credit bid); (vi) the Term Facility Secured Parties shall be entitled to vote on any plan of reorganization to the extent consistent with the provisions of this Agreement; and (vii) subject to Section 3.02(a), the Term Facility Administrative Agent and the other Term Facility Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Shared Collateral after the termination of the Standstill Period (the actions described in clauses (i) through (vii) above being referred to herein as the “Term Facility Permitted Actions”). Except for the Term Facility Permitted Actions, unless and until the Discharge of Revolving Facility Obligations has occurred, the sole right of the Term Facility Administrative Agent and the other Term Facility Secured Parties with respect to the ~~Pari Passu Lien Obligations may commence~~ Shared Collateral shall be to receive the proceeds of the Shared Collateral, in accordance with Section 4.01, to the extent of the Term Facility Obligations, and in accordance with the Term Facility Loan Documents and applicable law. The foregoing shall not be construed to limit the rights and priorities of any Term Facility Secured Party or ~~maintain~~ Term Facility Administrative Agent with respect to any ~~Enforcement Action~~ Collateral not constituting Shared Collateral. (b) In exercising rights and remedies with respect to the Shared Collateral~~; provided~~, however, that (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Facility Administrative Agent and the ~~Controlling Pari Passu Agent received notice from~~ other Revolving Facility Secured Parties may enforce the ~~Non-Controlling Pari Passu Agent~~ provisions of the Revolving Facility Loan Documents and exercise remedies thereunder, all in such ~~declaration~~ order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an ~~Event~~ agent appointed by them to Dispose of ~~Default; provided~~Shared Collateral upon foreclosure, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to ~~consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations~~ incur expenses in connection with ~~an Enforcement Action~~ any such Disposition of Shared Collateral and to exercise all the rights and remedies of a secured creditor with respect to the Shared ~~Collateral. Notwithstanding~~ Collateral under the ~~foregoing~~Uniform Commercial Code, ~~(a)~~ the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights Bankruptcy Code or any ~~exercise~~ other Bankruptcy Law. The Revolving Facility Administrative Agent agrees to provide at least ten days’ prior written notice to the Term Facility Administrative Agent of ~~remedies with respect~~ its intention to foreclose upon or Dispose of any or all of the Shared Collateral.

Appears in 1 contract

Samples: Intercreditor Agreement (Atlas Energy, L.P.)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) Until the Senior Priority Discharge ~~of Priority Payment Lien Obligations and~~ Date, whether or not an any Insolvency Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of the Pulitzer Entities that own Shared Collateral, (A) the Revolving~~ Collateral Agent and ~~any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ Security Trustee and the other Revolving Facility Secured Parties shall have the exclusive right to ~~exercise~~ take any ~~right~~ Enforcement Action with respect to Collateral, in each case, without any consultation with or ~~remedy~~ the consent of the Notes Collateral Agent and Security Trustee or any other Noteholder Secured Party; provided, that, notwithstanding the foregoing, the Notes Collateral Agent and Security Trustee may: (i) in any Insolvency Proceeding, file a proof of claim or statement of interest with respect to the Noteholder Obligations; provided, that, in the event the Notes Collateral Agent and Security Trustee has failed to file any such proof of claim or statement of interest within 30 days prior to the bar date applicable to such claim, the Collateral Agent and Security Trustee may (but shall not be obligated to) file any such proof of claim or statement of interest on behalf of the Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties (subject to the Collateral Agent and Security Trustee providing the Notes Collateral Agent and Security Trustee and other Noteholder Secured Parties with a reasonable and customary indemnification with respect to any ~~Shared~~ liabilities that may be incurred by the Notes Collateral Agent 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~~ Security Trustee arising with respect ~~thereto~~ to any such proof of claim in such Insolvency Proceeding by Collateral Agent and Security Trustee or statement of interest in such Insolvency Proceeding by Collateral Agent and Security Trustee); provided, further, that, (A) if the Collateral Agent and Security Trustee files any such proof of claim as contemplated above and the Trustee or Notes Collateral Agent and Security Trustee shall subsequently timely file a proper proof of claim in such Insolvency Proceeding, such subsequent proper proof of claim filed by the Trustee or the Notes Collateral Agent and Security Trustee shall supersede any such proof of claim theretofore filed by the Collateral Agent and Security Trustee on behalf of the Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties and such proof of claim theretofore filed by the Collateral Agent and Security Trustee on behalf of the Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties shall thereupon be deemed to be withdrawn, and (B) ~~none~~ the foregoing provisions of this clause (a)(i) shall not be construed to authorize the Collateral Agent and Security Trustee to authorize or consent to or accept or adopt on behalf of the Notes Collateral Agent and Security Trustee or any other Noteholder Secured Party, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or any claims with respect thereto or otherwise authorize the Collateral Agent and Security Trustee to authorize or consent to or accept or adopt on behalf of the Notes Collateral Agent and Security Trustee or any other Noteholder Secured Party any matter inconsistent with the provisions of this Agreement; (ii) take any action to preserve or protect the validity and enforceability of the Junior Liens; provided, that no such action is (A) materially adverse to the Senior Liens or the rights of the Collateral Agent and Security Trustee or any other Revolving Facility Secured Party to exercise remedies in respect thereof or (B) inconsistent with the terms of this Intercreditor Agreement, including, without limitation, the automatic release of Junior Liens provided for in Section 3.04; (iii) 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 Noteholder Secured Parties, including any claims secured by the Noteholder Collateral, or otherwise make any agreements or file any motions pertaining to the Noteholder Obligations, in each case, to the extent not inconsistent with the terms of this Intercreditor Agreement; (iv) exercise rights and remedies as unsecured creditors to the extent (and only to the extent) provided in Section 3.03 (the actions described in clauses (a)(i) through (a)(iv) of this Section 3.01 being referred to herein as the “Permitted Enforcement Actions”); and (v) following the termination of the Standstill Period, take any Enforcement Action in accordance with the terms of Section 3.02 (the actions described in clauses (a)(i) through (a)(v) of this Section 3.01 being referred to herein as the “Permitted Specified Enforcement Actions”). Except for the Permitted Specified Enforcement Actions, unless and until the Senior Priority Discharge Date, the sole rights of the Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties with respect to the ~~Pari Passu Lien Obligations~~ Noteholder Collateral shall be to enforce the terms of this Intercreditor Agreement and receive such Collateral (or the proceeds thereof), if any, remaining after the Senior Priority Discharge Date has occurred (to the extent (and only to the extent) required by the Noteholder Documents and this Intercreditor Agreement). (b) In exercising rights and remedies with respect to the Collateral, the Collateral Agent and Security Trustee and the other Revolving Facility Secured Parties may ~~commence~~ enforce the provisions of the Revolving Facility Security Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include, without limitation, the rights of an agent appointed by them to Dispose of Revolving Facility Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code in effect in any jurisdiction, the Bankruptcy Code or ~~maintain~~ any other Bankruptcy Law, with respect to such Collateral. The Collateral Agent and Security Trustee agrees to provide at least ten (10) business days’ prior written notice to the Notes Collateral Agent and Security Trustee of its intention to take any Enforcement Action with respect to a material portion of the ~~Shared~~ Revolving Facility Collateral; provided, however, that ~~(i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at~~ failure to give any such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving shall not in any way limit Collateral Agent and ~~the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of~~ Security Trustee’s ability hereunder to take any such ~~declaration of an Event of Default~~Enforcement Action; ~~provided, further, however,~~ and notwithstanding the ~~expiration of the Revolver Standstill Period~~foregoing, if ~~the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences~~ an ~~Enforcement Action~~Exigent Circumstance has occurred and is continuing, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Security Trustee may take Enforcement Action with respect to any material portion of the ~~Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to~~Collateral without prior written notice to Notes Collateral Agent and Security Trustee, and ~~bound by~~Collateral Agent and Security Trustee hereby agrees to provide written notice of such Enforcement Action reasonably promptly thereafter. (i) The Notes Collateral Agent and Security Trustee, ~~all covenants or agreements made in this Agreement,~~ for itself and ~~(b) each Agent will agree,~~ on behalf of ~~itself~~ the other Noteholder Secured Parties, hereby acknowledges and ~~its related secured parties~~agrees that no covenant, ~~that such~~ agreement or restriction contained in any Noteholder Security Document or any other Noteholder Document shall be deemed to prohibit, restrain or otherwise restrict in any way the rights and remedies of the Collateral Agent and ~~its Related~~ Security Trustee or the other Revolving Facility Secured Parties ~~shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies~~ with respect to the Revolving Facility Collateral as set forth in this Intercreditor Agreement and the other Revolving Facility Documents. (ii) The Collateral Agent and Security Trustee, for itself and on behalf of the other Revolving Facility Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ~~Shared Collateral~~Revolving Facility Security Document or any other Revolving Facility Document shall be deemed to prohibit, restrain or otherwise restrict in any way the rights and remedies of the Notes Collateral Agent and Security Trustee or the other Noteholder Secured Parties with respect to the Noteholder Collateral as set forth in this Intercreditor Agreement and the other Revolving Facility Documents.

Appears in 1 contract

Samples: Intercreditor Agreement (United Maritime Group, LLC)

Exercise of Rights and Remedies. ~~At any time prior to~~ So long as the Discharge of ~~Priority Payment~~ First Lien Obligations ~~and~~ has not occurred, whether or not an any Insolvency or Liquidation Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of the Pulitzer Entities that own Shared Collateral, (A) the Revolving~~ First Lien Collateral Agent and ~~any Additional Agent on behalf of any Additional Priority Payment~~ the other First Lien ~~Obligations~~ Secured Parties shall have the exclusive right to enforce rights and exercise remedies (including any right ~~or remedy~~ of setoff) with respect to the Collateral (including making determinations regarding the release, Disposition or restrictions with respect to the Collateral), or to commence or seek to commence any ~~Shared~~ action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), in each case, without any consultation with or the consent of the Second Lien Collateral Agent or any other Second Lien Secured Party, or the Third Lien Collateral Agent or any other Third Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, (A) the Second Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Second Lien Obligations and ~~will also~~ the Second Lien Secured Parties may vote such claims to the extent not inconsistent with the terms of this Agreement and (B) the Third Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Third Lien Obligations and the Third Lien Secured Parties may vote such claims to the extent not inconsistent with the terms of this Agreement; (ii) each of the Second Lien Collateral Agent and Third Lien Collateral Agent may take any action to perfect, preserve or protect the validity and enforceability of the Second Priority Liens and Third Priority Liens, respectively, provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens and Third Priority Liens provided in Section 3.04; (iii) the Second Lien Secured Parties and Third Lien Secured Parties may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties or Third Lien Secured Parties, respectively, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Lien Obligations and Third Lien Secured Parties, respectively, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) each of the Second Lien Collateral Agent, any Second Lien Secured Party, the Third Lien Collateral Agent and any Third Lien Secured Party may vote on a plan of reorganization; (v) each of the Second Lien Note Holders and the Third Lien Note Holders may accelerate the Second Lien Obligations and the Third Lien Obligations pursuant to the terms of the Second Lien Note Documents and the Third Lien Note Documents, respectively; and (vi) subject to Section 3.02(a), the Second Lien Collateral Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions of the Second Lien Secured Parties described in this proviso being referred to herein as the Second Lien Permitted Actions and the actions of the Third Lien Secured Parties described in this proviso being referred to herein as the Primary Third Lien Permitted Actions). After the Discharge of First Lien Obligations and so long as the Discharge of Second Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Collateral Agent and the other Second Lien Secured Parties shall have the exclusive right to ~~determine~~ enforce rights and exercise remedies (including any right of setoff) with respect to the ~~time and method and place for exercising such right~~ Collateral (including making determinations regarding the release, Disposition or ~~remedy~~ restrictions with respect to the Collateral), or ~~conducting~~ to commence or seek to commence any action or proceeding with respect ~~thereto~~ to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), in each case, without any consultation with or the consent of the Third Lien Collateral Agent or any other Third Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, the Third Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Third Lien Obligations and the Third Lien Secured Parties may vote such claims to the extent not inconsistent with the terms of this Agreement; (ii) the Third Lien Collateral Agent may take any action to perfect, preserve or protect the validity and enforceability of the Third Priority Liens, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Second Priority Liens or the rights of the Second Lien Collateral Agent or any other Second Lien Secured Party to exercise remedies in respect thereof or (B) ~~none~~ otherwise inconsistent with the terms of this Agreement, including the automatic release of Third Priority Liens provided in Section 3.04; (iii) the Third Lien Secured Parties may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Third Lien Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Third Lien Secured Parties, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) each of the Third Lien Collateral Agent and any Third Lien Secured Party may vote on a plan of reorganization; and (v) the Third Lien Note Holders may accelerate the Third Lien Obligations pursuant to the terms of the Third Lien Note Documents (the actions described in this proviso being referred to herein as the Secondary Third Lien Permitted Actions and, together with the Primary Third Lien Permitted Actions, the Third Lien Permitted Actions). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Collateral Agent and the other Second Lien Secured Parties with respect to the ~~Pari Passu~~ Collateral shall be to receive a share of the proceeds of the Collateral, if any, after the Discharge of First Lien Obligations ~~may commence or maintain any Enforcement Action~~ has occurred and in accordance with the Second Lien Note Documents and applicable law. Except for the Third Lien Permitted Actions, unless and until the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has occurred, the sole right of the Third Lien Collateral Agent and the other Third Lien Secured Parties with respect to the ~~Shared Collateral; provided, however, that (i) the~~ Collateral ~~Agent~~ shall be to receive a share of the ~~Pari Passu Lien Obligations with~~ proceeds of the ~~largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action~~ Collateral, if any, after the ~~passage~~ Discharge of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu First Lien Obligations and ~~(y)~~ the ~~date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent~~ Discharge of ~~such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu~~ Second Lien Obligations has occurred and in accordance with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default Third Lien Note Documents and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateralapplicable law.

Appears in 1 contract

Samples: Second Lien Subordinated Note Purchase Agreement (NextWave Wireless Inc.)

Exercise of Rights and Remedies. ~~At any time prior to~~ Each Junior Lien Collateral Agent, for itself and on behalf of the other Junior Lien Secured Parties for whom it is acting as agent: a. will not, so long as the Discharge of ~~Priority Payment~~ First Lien ~~Obligations and whether~~ Debt has not occurred, enforce or ~~not an Insolvency Proceeding has commenced by~~ exercise, or ~~against the Borrower~~ seek to enforce or exercise, any ~~of the Pulitzer Entities that own Shared Collateral,~~ rights or remedies (~~A) the Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise~~ including any right of setoff or ~~remedy~~ notification of account debtors) with respect to any ~~Shared~~ Collateral ~~and will also have~~ (including the ~~exclusive~~ enforcement of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to ~~determine the time and method and place for exercising such right~~ which any Junior Lien Collateral Agent or ~~remedy~~ any other Junior Lien Secured Party is a party) or ~~conducting~~ commence or join with any Person (other than First Lien Agent) in commencing, or filing a petition for, any action or proceeding with respect ~~thereto~~ to such rights or remedies (including any such enforcement or exercise in any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided, that, subject at all times to the provisions of Section 4 of this Intercreditor Agreement, each Junior Lien Collateral Agent may enforce or exercise any or all such rights and remedies, or commence or petition for any such action or proceeding, after a period ending (Bi) ~~none of the Secured Parties~~ with respect to any Junior Lien Non-Payment Default, the ~~Pari Passu~~ date which is one hundred eighty (180) days after the receipt by First Lien ~~Obligations may commence~~ Agent of a Junior Lien Default Notice from any Junior Lien Collateral Agent declaring, in writing, the occurrence of such Junior Lien Non-Payment Default or ~~maintain any Enforcement Action~~ (ii) with respect to any Junior Lien Payment Default, the ~~Shared Collateral; provided, however, that~~ date which is one hundred twenty (i120) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the ~~earlier~~ receipt by First Lien Agent of ~~(x)~~ a Junior Lien Default Notice from such Junior Lien Collateral Agent declaring, in writing, the ~~date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount~~ occurrence of such ~~Pari Passu~~ Junior Lien ~~Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of~~ Payment Default (the “~~Revolver~~ Standstill Period”~~) and (ii) the Collateral Agent~~ ); provided, that, as of the ~~Pari Passu~~ expiration of the Standstill Period, the applicable Junior Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default ~~and demanded~~ that was the ~~repayment~~ subject of ~~all~~ the ~~principal amount~~ Junior Lien Default Notice received by First Lien Agent which commenced the applicable Standstill Period remains uncured, unremedied or unwaived as of ~~such Pari Passu Lien Obligations and (y)~~ the ~~date on which~~ expiration of the ~~Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default~~Standstill Period; provided, further, however, that, notwithstanding the expiration of the ~~Revolver~~ Standstill ~~Period~~Period or anything herein to the contrary, ~~if the Revolving~~ in no event shall any Junior Lien Collateral Agent or any other ~~Collateral Agent on behalf of~~ Junior Lien Secured Party enforce or exercise any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or ~~any exercise of~~ remedies with respect to any ~~Shared~~ Collateral, or commence or petition for any such action or proceeding (including the taking such enforcement or exercise in any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), if First Lien Agent or any other First Lien Secured Party shall have commenced, prior to the expiration of the Standstill Period, a Lien Enforcement Action and shall be pursuing the same in good faith (including, without limitation, any of the following, if undertaken and pursued to consummate the sale of such Collateral within a commercially reasonable time: solicitation of bids from third parties to conduct the liquidation of all or any material portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any material portion of the Collateral, the notification of account debtors to make payments to First Lien Agent or its agents, the initiation of any action to take possession of all or any material portion of the Collateral or the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Collateral); b. will not contest, protest or object to any Lien Enforcement Action brought by First Lien Agent or any other First Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Documents or otherwise, so long as the Liens of such Junior Lien Collateral Agent attach to the proceeds thereof subject to the relative priorities set forth in Section 2.2 and such actions or proceedings are being pursued in good faith; c. will not object to the forbearance by First Lien Agent or the other First Lien Secured Parties from commencing or pursuing any Lien Enforcement Action or any other enforcement or exercise of any rights or remedies with respect to any of the Collateral; d. will not, so long as the Discharge of First Lien Debt has not occurred and except for actions permitted under Sections 3.1(a) above, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation); e. will not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Documents, including any sale or other disposition of any Collateral, whether by foreclosure or otherwise and acknowledges and agrees that no covenant, agreement or restriction contained in any Junior Lien Document shall be deemed to restrict in any way the rights and remedies of First Lien Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Intercreditor Agreement and the First Lien Documents; f. will not object to the manner in which First Lien Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Debt or the Liens of such First Lien Secured Party, regardless of whether any action or failure to act by or on behalf of First Lien Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Junior Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (f); provided, that, at all times First Lien Agent is acting in good faith; and g. will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Debt or any Lien of First Lien Agent or this Intercreditor Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Intercreditor Agreement. Notwithstanding anything to the contrary set forth in this Section 3.1 or elsewhere in this Intercreditor Agreement, the Junior Lien Secured Parties shall at all times be permitted to take any Permitted Junior Lien Action against any Grantor.

Appears in 1 contract

Samples: Intercreditor Agreement (Castle a M & Co)

Exercise of Rights and Remedies. At So long as any ~~time prior to~~ of the ~~Discharge of Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower~~ Senior Debt Documents remain in effect or any of the ~~Pulitzer Entities that own Shared Collateral~~Senior Obligations remain outstanding, ~~(A)~~ the ~~Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ Senior Lender shall have the exclusive right to carry out the provisions of the Senior Debt Documents and to enforce and collect any loans or advances included within the Senior Collateral, or the Senior Obligations secured thereby and to exercise and enforce all rights and privileges accruing to the Senior Lender by reason of the Senior Debt Documents and any other agreements, security, guaranties or claims given to the Senior Lender in connection therewith, all in the Senior Lender’s sole discretion and in the exercise of its sole business judgment. This includes more specifically, without limitation, the rights: (i) in the Senior Lender’s sole discretion, to make overadvances or other extensions of credit to the Company in excess of the amounts otherwise available to the Company under the Senior Debt Documents, (ii) to effect collection of all Senior Collateral and to settle and adjust the amounts due thereon directly with the applicable Portfolio Obligors (to the extent provided in and as defined in the Senior Debt Documents), (iii) to sell or otherwise dispose of Senior Collateral, and (iv) to incur expenses in relation to the foregoing; all as may be necessary in the Senior Lender’s reasonable discretion, and all as more fully provided in the Senior Debt Documents and to exercise all the rights and remedies of a secured lender under the UCC. In exercising its rights as aforesaid, the Senior Lender agrees that it shall handle all transactions relating to the Senior Collateral in accordance with its usual practices in the ordinary course of its business. The Trustee agrees that, so long as the Company may be indebted or obligated to the Senior Lender in any manner whatsoever under the Senior Debt Documents, the Trustee shall not exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties rights with respect to the ~~Pari Passu Lien Obligations may commence or maintain any Enforcement Action~~ Senior Collateral, the Purchased Assets and the stock of NFASC, except in compliance with ~~respect~~ the terms and conditions of this Agreement and the Senior Debt Documents; the Administrative Agent hereby consents to the Shared Collateral; provided, however, that (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Navistar International Corp)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) Merger Loan Agent, for itself and on behalf of the other Merger Loan Secured Parties: (i) will not, so long as the Discharge of Revolving Loan Debt has not occurred, enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff or notification of account debtors) with respect to any Revolving Loan Priority ~~Payment~~ Collateral (including the enforcement of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which Merger Loan Agent or any other Merger Loan Secured Party is a party relating to the Revolving Loan Priority Collateral) or commence or join with any Person (other than Revolving Loan Lender with its consent) in commencing, or filing a petition for, any action or proceeding with respect to such rights or remedies provided that following expiration of 270 days after delivery of notice by the Merger Loan Agent to the Revolving Loan Lender of the occurrence of a Merger Loan Event of Default (which such default has not been waived or cured during such 270 day period) the provisions of this Section 3(a)(i) shall cease to apply and Merger Loan Agent shall be permitted to exercise rights and remedies with respect to the Revolving Loan Priority Collateral (collectively, the “Merger Loan Revolving Loan Lien ~~Obligations~~ Enforcement Action”), subject in all respects to the priorities set forth in this Agreement; provided, further, that if the Revolving Loan Lender shall have commenced and ~~whether~~ is pursuing rights and remedies in good faith and in a commercially reasonable manner with respect to the Revolving Loan Priority Collateral, then Merger Loan Agent shall be precluded from enforcing rights and remedies with respect thereto; (ii) will not contest, protest or object to any foreclosure action or proceeding brought by Revolving Loan Lender or any other enforcement or exercise by Revolving Loan Lender of any rights or remedies relating solely to the Revolving Loan Priority Collateral under the Revolving Loan Documents or otherwise, so long as the Liens of Merger Loan Agent attach to the proceeds thereof subject to the relative priorities set forth in Section 2.2 and such actions or proceedings are being pursued in good faith; (iii) will not ~~an Insolvency Proceeding has commenced~~ object to the forbearance by Revolving Loan Lender from commencing or ~~against the Borrower~~ pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to any of the ~~Pulitzer Entities that own Shared~~ Revolving Loan Priority Collateral; (iv) will not, so long as the Discharge of Revolving Loan Debt has not occurred and except for actions permitted under Section 3.1(a)(i) above, take or receive any Revolving Loan Priority Collateral, ~~(A)~~ or any proceeds thereof or payment with respect thereto, in each case in connection with the ~~Revolving Collateral Agent and any Additional Agent on behalf~~ exercise of ~~any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise~~ any right or remedy (including any right of setoff) with respect to any ~~Shared~~ Revolving Loan Priority Collateral; it being understood and agreed that payments made by Merger Loan Borrower in respect of the Merger Loan Debt with cash or proceeds of loans or advances under the Revolving Loan Documents or from Proceeds of the Revolving Loan Priority Collateral shall not constitute a breach of this Section 3.1(a)(iv) or any other provision of this Agreement; (v) agrees that no covenant, agreement or restriction contained in any Merger Loan Document shall be deemed to restrict in any way the rights and remedies of Revolving Loan Lender with respect to the Revolving Loan Priority Collateral as set forth in this Agreement and the Revolving Loan Documents; (vi) will not object to the manner in which Revolving Loan Lender may seek to enforce or collect the Revolving Loan Debt or the Liens of Revolving Loan Lender with respect to the Revolving Loan Priority Collateral, regardless of whether any action or failure to act by or on behalf of Revolving Loan Lender is, or could be, adverse to the interests of Merger Loan Secured Parties, and will ~~also have~~ not assert, and hereby waives, to the ~~exclusive~~ fullest extent permitted by law, any right to ~~determine~~ demand, request, plead or otherwise assert or claim the ~~time~~ benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Revolving Loan Priority Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (vi); provided, that, at all times Revolving Loan Lender is acting in good faith and ~~method and place for exercising~~ in a commercially reasonable manner; and (vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge the validity or enforceability of any Revolving Loan Debt or any Lien of Revolving Loan Lender or this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement. (b) Revolving Loan Lender: (i) will not, so long as the Discharge of Merger Loan Debt has not occurred, enforce or exercise, or seek to enforce or exercise, any rights or remedies with respect to any Merger Loan Priority Collateral or commence or join with any Person (other than Merger Loan Agent with its consent) in commencing, or filing a petition for, any action or proceeding with respect to such rights or remedies; (ii) will not contest, protest or object to any foreclosure action or proceeding brought by Merger Loan Agent or any other Merger Loan Secured Party, or any other enforcement or exercise by any Merger Loan Secured Party of any rights or remedies relating solely to the Merger Loan Priority Collateral under the Merger Loan Documents or otherwise; (iii) will not object to the forbearance by Merger Loan Agent or the other Merger Loan Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to any of the Merger Loan Priority Collateral; (iv) will not, so long as the Discharge of Merger Loan Debt has not occurred, take or receive any Merger Loan Priority Collateral, or any proceeds thereof or payment with respect thereto, in each case, in connection with the exercise of any right or remedy ~~or conducting~~ (including any ~~proceeding~~ right of setoff) with respect ~~thereto~~ to any Merger Loan Priority Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation); (v) agrees that no covenant, agreement or restriction contained in any Revolving Loan Document shall be deemed to restrict in any way the rights and ~~(B) none~~ remedies of Merger Loan Agent or the other Merger Loan Secured Parties with respect to the ~~Pari Passu Lien Obligations~~ Collateral as set forth in this Agreement and the Merger Loan Documents; (vi) will not object to the manner in which Merger Loan Agent or any other Merger Loan Secured Party may ~~commence~~ seek to enforce or ~~maintain any Enforcement Action~~ collect the Merger Loan Debt or the Liens of such Merger Loan Secured Party with respect to the ~~Shared~~ Merger Loan Priority Collateral~~; provided~~, ~~however, that (i) the Collateral Agent~~ regardless of ~~the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage~~ whether any action or failure to act by or on behalf of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Merger Loan Agent or any other ~~Collateral Agent on behalf~~ Merger Loan Secured Party is, or could be, adverse to the interests of Revolving Loan Lender, and will not assert, and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any ~~Additional Priority Payment Lien Obligations commences an Enforcement Action~~marshalling, ~~neither the Controlling Pari Passu Agent~~appraisal, ~~the Non-Controlling Pari Passu Agent~~ valuation or ~~any~~ other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are similar right that may be available under ~~no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action~~ applicable law with respect to the ~~Shared Collateral. Notwithstanding~~ Merger Loan Priority Collateral or any other rights a junior creditor may have under applicable law with respect to the ~~foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made~~ matters described in this ~~Agreement~~clause (vi); provided, that, at all times Merger Loan Agent is acting in good faith and ~~(b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate~~ in a commercially reasonable manner; and (vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge the validity or enforceability of any Merger Loan Debt or any Lien of Merger Loan Agent or this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement. (c) Notwithstanding the foregoing clauses (a) and (b), each of Merger Loan Agent and Revolving Loan Lender may: (i) file a claim or statement of interest with respect to the Revolving Loan Debt or Merger Loan Debt, as the case may be; provided that an Insolvency or Liquidation Proceeding has been commenced by or against Borrower or any other Grantor; (ii) take any action (not adverse to the priority status of the Liens as set forth in this Agreement) in order to create, perfect, preserve or protect (but not enforce) its Lien on any its respective Collateral; (iii) 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 Revolving Loan Lender or Merger Loan Secured Parties represented by it, including any claims secured by the Collateral, if any, or otherwise make any agreements or file any motions or objections pertaining to the claims of such Secured Parties, in each case in accordance with the terms of this Agreement; (iv) file any pleadings, objections, motions or agreements which assert rights or interests that are available to unsecured creditors of the Grantors (but expressly excluding the commencement of an Insolvency or Liquidation Proceeding against Borrower or any other Grantor), in each case, in accordance with applicable law and in a manner not inconsistent with the terms of this Agreement; (v) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement; (vi) inspect or appraise each’s respective Collateral (and to engage or retain investment bankers or appraisers for the sole purposes of appraising or valuing the Collateral), or receive information or reports concerning the Collateral; (vii) take any action to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims, or to assert a compulsory cross-claim or counterclaim against Borrower or any other ~~agent~~ Grantor; (viii) take any action to seek and obtain specific performance or ~~trustee and its related secured parties~~ injunctive relief to compel Borrower or any other Grantor to comply with (or not violate or breach) an obligation under the Revolving Loan Documents or the Merger Loan Documents, as applicable, so long as it is not accompanied by a claim for monetary damages or collection action or is not in violation of the provisions of this Agreement; (ix) Merger Loan Agent may join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Revolving Loan Priority Collateral initiated by the Revolving Loan Lender to the extent that any such action could not reasonably be expected, in any ~~enforcement~~ material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with such proceeding by such other Agent with respect to its Priority Collateral; (x) enforce the terms of ~~rights or~~ any ~~exercise of remedies~~ subordination agreement with respect to any ~~Shared~~ indebtedness subordinated to such Person; or (xi) cash or credit bid for their respective Collateral provided, that if the Merger Loan Agent wishes to bid for Revolving Loan Priority Collateral it must cause there to be a Discharge of the Merger Loan Debt at the closing on the purchase of such Revolving Loan Priority Collateral.

Appears in 1 contract

Samples: Intercreditor Agreement (Interpace Diagnostics Group, Inc.)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) Until the Discharge of ~~Priority Payment~~ First Lien Obligations ~~and~~ has occurred, whether or not an any Insolvency or Liquidation Proceeding has been commenced by or against ~~the Borrower~~ Tensar or any other Grantor, the Second Lien Secured Party and the Second Lien Claimholders: (i) will not exercise or seek to exercise any rights or remedies (including setoff, the right to credit bid their debt and any actions as agent or in connection with the exercise of rights pursuant to a power of attorney or otherwise) with respect to any Collateral or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided that if an Event of Default (as defined in the Second Lien Commodities Purchase Agreement (as in effect on the date hereof)) has occurred and for so long as such Event of Default is continuing, subject at all times to the provisions of Sections 2.1 and 4, after expiration of a 120-day period (the “Standstill Period”) which shall commence on the date of receipt by the First Lien Secured Party of the ~~Pulitzer Entities that own Shared Collateral~~written declaration of the Second Lien Secured Party of such Event of Default and written demand by the Second Lien Secured Party to Tensar for the accelerated payment of all Second Lien Obligations (unless Tensar or any other Grantor is subject to an Insolvency or Liquidation Proceeding by reason of which such declaration and the making of such demand is stayed, in which case, commencing on the date of the commencement of such Insolvency or Liquidation Proceeding), the Second Lien Secured Party may take action to enforce its Liens on the Second Lien Collateral (A) including the ~~Revolving Collateral Agent and any Additional Agent on behalf~~ institution of any ~~Additional Priority Payment~~ action or proceeding with respect to its rights or remedies with respect to any Second Lien Collateral) upon prior written notice to Tensar and the First Lien Secured Party, but only so long as the First Lien Secured Party is not diligently pursuing in good faith the exercise of its enforcement rights or remedies against, or diligently attempting to vacate any stay or enforcement of its Liens on, all or any material portion of the Collateral; (ii) will not contest, protest or object to any foreclosure proceeding or action brought by the First Lien Secured Party or any First Lien Claimholder or any other exercise by the First Lien Secured Party or any First Lien Claimholder of any rights and remedies relating to the First Lien Collateral or otherwise; or (iii) subject to their rights under clause (a)(i) above, will not object to the forbearance by the First Lien Secured Party or the First Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the First Lien Collateral. (b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tensar or any other Grantor, subject to Section 3.1(a)(i), the First Lien Secured Party and the First Lien Claimholders shall have the exclusive right to enforce rights, exercise remedies (including set-off and the right to credit bid their debt) and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or the consent of the Second Lien Secured Party or any Second Lien Claimholder. In exercising rights and remedies with respect to the Collateral, the First Lien Secured Party and the First Lien Claimholders may enforce the provisions of the First Lien Lease/Purchase Facilities Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. (c) Notwithstanding the foregoing, the Second Lien Secured Party and any Second Lien Claimholder may: (i) file a claim or statement of interest with respect to the Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against Tensar or any other Grantor; (ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of any First Lien Secured Party or the First Lien Claimholders to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Collateral; (iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Claimholders, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement; (iv) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Second Lien Obligations and the Collateral; (v) (i) may impose a late payment at the Default Rate, as described in Section 3.1 of the Second Commodities Purchase Agreement and (ii) may demand accelerated payment of any and all of the Second Lien Obligations and may file and pursue any lawsuit to collect the Second Lien Obligations to the extent that such demand, filing, and pursuit would be remedies available to any unsecured creditor of Tensar; (vi) exercise any ~~right~~ of its rights or ~~remedy~~ remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by Section 3.l(a)(i); and (vii) present a cash bid at any Section 363 hearing or with respect to any Shared 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 and (B) none of the Secured Parties with respect to the Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect to the Shared Collateral; provided, however, that (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Actiondisposition. The ~~Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment~~ Second Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured ~~Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree~~Party, on behalf of itself and the Second Lien Claimholders, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including set-off) with respect to any Collateral in its ~~related secured parties~~capacity as a creditor, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 3.1(a)(i). Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in Section 3.1(a), Section 6.3(b) and this Section 3.1(c), the sole right of the Second Lien Secured Party and the Second Lien Claimholders with respect to the Collateral is to hold a Lien on the Collateral pursuant to the Second Lien Security Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred as set forth herein. (d) Subject to Sections 3.1(a) and (c) and Section 6.3(b): (i) the Second Lien Secured Party, for itself and on behalf of the Second Lien Claimholders, agrees that ~~such Agent~~ the Second Lien Secured Party and ~~its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in~~ the Second Lien Claimholders will not take any ~~enforcement of rights or~~ action that would hinder any exercise of remedies under the First Lien Lease/Purchase Facilities Documents or is otherwise prohibited hereunder, including any sale, lease, exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise; (ii) the Second Lien Secured Party, for itself and on behalf of the Second Lien Claimholders, hereby waives any and all rights it or the Second Lien Claimholders may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Secured Party or the First Lien Claimholders seek to enforce or collect the First Lien Obligations or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the First Lien Secured Party or First Lien Claimholders is adverse to the interest of the Second Lien Claimholders; and (iii) the Second Lien Secured Party hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Second Lien Security Documents or any other Second Lien Commodities Purchase Facility Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Lien Secured Party or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Lease/Purchase Facilities Documents. (e) Except as otherwise specifically set forth in Sections 3.1(a) and (d), the Second Lien Secured Party and the Second Lien Claimholders may exercise rights and remedies as unsecured creditors against Tensar or any ~~Shared~~ other Grantor that has guaranteed or granted Liens to secure the Second Lien Obligations in accordance with the terms of the Second Lien Commodities Purchase Facility Documents and applicable law (including, without limitation, filing any pleadings, objections, motions or agreements in connection therewith); provided that in the event that any Second Lien Claimholder becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Second Lien Obligations are subject to this Agreement. (f) Except as specifically set forth in Sections 3.1(a) and (d) and Section 4, nothing in this Agreement shall prohibit the receipt by the Second Lien Secured Party or any Second Lien Claimholders of the required payments of Murabaha Price, Agreed Profit and other amounts owed in respect of the Second Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Second Lien Secured Party or any Second Lien Claimholders of rights or remedies as a secured creditor (including set-off) or enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Secured Party or the First Lien Claimholders may have with respect to the First Lien Collateral.

Appears in 1 contract

Samples: Intercreditor Agreement (Tensar Corp)

Appears in 1 contract

Samples: Intercreditor Agreement

Exercise of Rights and Remedies. At any time prior to the Discharge of Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower or any ~~of the Pulitzer Entities~~ Grantor that ~~own~~ owns Shared Collateral, (A) the Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties with respect to the Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect to the Shared Collateral; provided, however, that (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateral.

Appears in 1 contract

Samples: Pari Passu Intercreditor Agreement (Lee Enterprises, Inc)

Exercise of Rights and Remedies. ~~At any time prior~~ Subject to the ~~Discharge~~ succeeding paragraph, the Agent and the Lenders agree that they will not exercise their rights and remedies under this Agreement until the earlier to occur of ~~Priority Payment Lien Obligations and whether or not an Insolvency Proceeding~~ (i) (a) ninety (90) days have lapsed from the date upon which the Agent has delivered written notice to the Individual Guarantors that the Agent has commenced ~~by or against~~ the ~~Borrower or any~~ exercise of its rights under Article XI of the ~~Pulitzer Entities~~ Credit Agreement to liquidate, sell, collect, foreclose upon, or otherwise realize on any part of the Collateral (in any instance, a "Foreclosure Proceeding"), and (b) the conclusion of such Foreclosure Proceeding (if applicable, the date of the satisfaction of the conditions in this clause (i) being referred to herein as the "Conclusion Date"), or (ii) one hundred eighty (180) days have lapsed from the date upon which the Agent has delivered written notice to the Individual Guarantors that ~~own Shared Collateral~~the Agent has commenced a Foreclosure Proceeding ( if applicable, the date of the satisfaction of the condition in this clause (ii) being referred to herein as the "Collection Date"). Upon the Conclusion Date, if applicable, the Individual Guarantors shall deposit into the Individual Guarantor Collateral Account an amount equal to the lesser of (A) the Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise any right or remedy with respect to any Shared 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 Maximum Aggregate Liability, and (B) ~~none~~ the outstanding amount of the ~~Secured Parties with respect~~ Debtor Liabilities as of the Conclusion Date, which amount shall be immediately applied to the ~~Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect~~ outstanding amount of the Debtor Liabilities. Upon the Collection Date, if applicable, the Individual Guarantors shall deposit into the Individual Guarantor Collateral Account an amount equal to the ~~Shared Collateral; provided, however, that~~ Maximum Aggregate Liability. Upon the earlier to occur of (iy) ~~the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time~~ one hundred eighty (~~the “Controlling Pari Passu Agent”~~180) ~~may commence an Enforcement Action after the passage of at least 120~~ days after the ~~earlier of~~ Collection Date, and (xz) the ~~date~~ conclusion of the applicable Foreclosure Proceeding, amounts deposited into the Individual Guarantor Collateral Account along with the interest accrued on ~~which~~ such amounts shall be applied to the ~~Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal~~ outstanding amount of ~~such Pari Passu Lien Obligations and (y)~~ the ~~date on which~~ Debtor Liabilities. Any amounts remaining in the ~~Revolving~~ Individual Guarantor Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action Account after the ~~passage of at least 150 days after~~ Debtor Liabilities are paid in full will be released by the ~~earlier of (x) the date on which the Non-Controlling Pari Passu~~ Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the ~~Shared Collateral~~Individual Guarantors. Notwithstanding the foregoing, in the event (ai) either Individual Guarantor fails to perform any covenant or obligation hereunder, (ii) any Loan Party does not cooperate with Agent (which cooperation shall be determined by Agent in its reasonable discretion) in its efforts to collect the ~~Secured Parties~~ Obligations from such Loan Party or to liquidate, sell, collect, foreclose upon or otherwise realize on the Collateral, (iii) there is filed by or against any Loan Party or either Individual Guarantor any case, petition, proceeding or other action under any existing or future state or federal bankruptcy, insolvency, reorganization, liquidation or arrangement or readjustment of debt law or any similar existing or future law of any applicable jurisdiction, (iv) a custodian, receiver, trustee, sequestrator, or agent is appointed or authorized to take charge of any assets of any Loan Party or either Individual Guarantor, (v) either Individual Guarantor shall ~~remain subject to~~die, ~~and bound by, all covenants~~ be incarcerated for more than three (3) days or ~~agreements made in~~ declared incompetent or otherwise incapacitated or unable to perform under this Agreement, or (vi) in Agent's reasonable opinion, a material adverse change in the condition (financial or otherwise), assets or properties of the Individual Guarantors taken as a whole has occurred (the occurrence of item (i), (ii), (iii), (iv), (v) or (vi) of this paragraph being referred to herein as a "Collection Event"), then Agent shall have the right immediately, and without any further notice, demand, or condition (~~b) each Agent will agree~~which the Individual Guarantors hereby waive), ~~on behalf~~ to collect payment of ~~itself~~ all of the Debtor Liabilities from the Individual Guarantors up to the Maximum Aggregate Liability and ~~its related secured parties~~otherwise to enforce all of the Agent's and the Lenders' rights and remedies under or arising out of this Agreement. Upon the occurrence of a Collection Event, ~~that~~ the Individual Guarantors shall immediately deposit into the Individual Guarantor Collateral Account an amount equal to the Maximum Aggregate Liability. Amounts deposited into the Individual Guarantor Collateral Account pursuant to this paragraph shall be immediately applied to the outstanding amount of the Debtor Liabilities, and any amounts remaining after such application shall remain in the Individual Guarantor Collateral Account until the indefeasible payment in full to the Agent and ~~its Related Secured Parties~~ the Lenders of all Debtor Liabilities. Amounts deposited into the Individual Guarantor Collateral Account pursuant to this Section will not be subject to withdrawal by the Individual Guarantors and the Agent, or a designated representative of the Agent, shall ~~cooperate in~~ have the sole right to withdraw such amounts. Neither the amounts deposited into the Individual Guarantor Collateral Account nor the Individual Guarantor Collateral Account itself shall constitute a ~~commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateral~~trust fund.

Appears in 1 contract

Samples: Limited Guaranty (General Finance CORP)

Appears in 1 contract

Samples: Intercreditor Agreement (Quicksilver Resources Inc)

Exercise of Rights and Remedies. At (a) So long as any ~~time prior to~~ of the ~~Discharge of Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower~~ Senior Debt Documents remain in effect or any of the ~~Pulitzer Entities that own Shared Collateral~~Senior Obligations remain outstanding, ~~(A)~~ the ~~Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ Senior Lender shall have the exclusive right to carry out the provisions of the Senior Debt Documents and to enforce and collect any loans or advances included within the Senior Collateral, or the Senior Obligations secured thereby and to exercise and enforce all rights and privileges accruing to the Senior Lender by reason of the Senior Debt Documents and any other agreements, security, guaranties or claims given to the Senior Lender in connection therewith, all in the Senior Lender's sole discretion and in the exercise of its sole business judgment. This includes more specifically, without limitation, the rights: (i) in the Senior Lender’s sole discretion, to make overadvances or other extensions of credit to the Company in excess of the amounts otherwise available to the Company under the Senior Debt Documents, (ii) to effect collection of all Senior Collateral and to settle and adjust the amounts due thereon directly with the applicable Portfolio Obligors (to the extent provided in and as defined in the Senior Debt Documents), (iii) to sell or otherwise dispose of Senior Collateral, and (iv) to incur expenses in relation to the foregoing; all as may be necessary in the Senior Lender's reasonable discretion, and all as more fully provided in the Senior Debt Documents and to exercise all the rights and remedies of a secured lender under the UCC. In exercising its rights as aforesaid, the Senior Lender agrees that it shall handle all transactions relating to the Senior Collateral in accordance with its usual practices in the ordinary course of its business. The Trustee agrees that, so long as the Company may be indebted or obligated to the Senior Lender in any manner whatsoever under the Senior Debt Documents, the Trustee shall not exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties rights with respect to the ~~Pari Passu Lien Obligations may commence or maintain any Enforcement Action~~ Senior Collateral, the Purchased Assets and the stock of NFASC, except in compliance with ~~respect~~ the terms and conditions of this Agreement and the Senior Debt Documents; the Administrative Agent hereby consents to the Shared Collateral; provided, however, that (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing~~, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and~~ . (b) ~~each~~ At the request of the Senior Lender, the Trustee shall promptly release any and all security interests, liens, claims and/or rights which they may have on or in the Senior Collateral to facilitate the collection, sale or other disposition of such Senior Collateral by the Senior Lender or by the Company (with the written consent of the Senior Lender) so long as the Proceeds thereof are applied in accordance with the provisions of Section 9 of this Agreement; the Administrative Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect hereby consents to ~~any Shared Collateral~~the foregoing.

Appears in 1 contract

Samples: Intercreditor Agreement (Navistar International Corp)

Appears in 1 contract

Samples: Intercreditor Agreement (Cinco Resources, Inc.)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) Until the Senior Discharge ~~of Priority Payment Lien Obligations and~~ Date, whether or not an any Insolvency Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of the Pulitzer Entities that own Shared Collateral, (A) the Revolving~~ Collateral Agent and ~~any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ Security Trustee and the Revolving Facility Secured Parties shall have the exclusive right to ~~exercise~~ take any ~~right or remedy~~ Enforcement Action with respect to Collateral, in each case, without any ~~Shared~~ consultation with or the consent of the Notes Collateral Agent and ~~will also have~~ Security Trustee or any other Noteholder Secured Party; provided, that, notwithstanding the ~~exclusive right to determine~~ foregoing, the ~~time~~ Notes Collateral Agent and ~~method and place for exercising such right~~ Security Trustee may: (i) in any Insolvency Proceeding, file a proof of claim or ~~remedy or conducting any proceeding~~ statement of interest with respect ~~thereto~~ to the Noteholder Obligations; provided, that, in the event the Notes Collateral Agent and Security Trustee has failed to file any such proof of claim or statement of interest within 30 days prior to the bar date applicable to such claim, the Collateral Agent and Security Trustee may (but shall not be obligated to) file any such proof of claim or statement of interest on behalf of the Notes Collateral Agent and Security Trustee and the Noteholder Secured Parties; provided, further, that, (A) if the Collateral Agent and Security Trustee files any such proof of claim as contemplated above and the Trustee or Notes Collateral Agent and Security Trustee shall subsequently timely file a proper proof of claim in such Insolvency Proceeding, such subsequent proper proof of claim filed by the Trustee or the Notes Collateral Agent and Security Trustee shall supersede any such proof of claim theretofore filed by the Collateral Agent and Security Trustee on behalf of the Notes Collateral Agent and Security Trustee and the Noteholder Secured Parties and such proof of claim theretofore filed by the Collateral Agent and Security Trustee on behalf of the Notes Collateral Agent and Security Trustee and the Noteholder Secured Parties shall thereupon be deemed to be withdrawn, and (B) ~~none~~ the foregoing provisions of this clause (a)(i) shall not be construed to authorize the Collateral Agent and Security Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes; (ii) take any action to preserve or protect the validity and enforceability of the Junior Liens; provided, that no such action is, or could reasonably be expected to be, (A) adverse to the Senior Liens or the rights of the Collateral Agent and Security Trustee or any other Revolving Facility Secured Party to exercise remedies in respect thereof or (B) inconsistent with the terms of this Intercreditor Agreement, including, without limitation, the automatic release of Junior Liens provided for in Section 3.04; (iii) 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 Noteholder Secured Parties, including any claims secured by the Noteholder Collateral, or otherwise make any agreements or file any motions pertaining to the Noteholder Obligations, in each case, to the extent not inconsistent with the terms of this Intercreditor Agreement; (iv) exercise rights and remedies as unsecured creditors to the extent (and only to the extent) provided in Section 3.03 (the actions described in clauses (a)(i) through (a)(iv) of this Section 3.01 being referred to herein as the “Permitted Enforcement Actions”); and (v) following the termination of the Standstill Period, take any Enforcement Action in accordance with the terms of Section 3.02 (the actions described in clauses (a)(i) through (a)(v) of this Section 3.01 being referred to herein as the “Permitted Specified Enforcement Actions”). Except for the Permitted Specified Enforcement Actions, unless and until the Senior Discharge Date, the sole rights of the Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties with respect to the ~~Pari Passu Lien Obligations~~ Noteholder Collateral shall be to enforce the terms of this Intercreditor Agreement and receive such Collateral (or the proceeds thereof), if any, remaining after the Senior Discharge Date has occurred (to the extent (and only to the extent) required by the Noteholder Documents). (b) In exercising rights and remedies with respect to the Collateral, the Collateral Agent and Security Trustee and the other Revolving Facility Secured Parties may ~~commence~~ enforce the provisions of the Revolving Facility Security Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include, without limitation, the rights of an agent appointed by them to Dispose of Revolving Facility Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code in effect in any jurisdiction, the Bankruptcy Code or ~~maintain~~ any other Bankruptcy Law, with respect to such Collateral. The Collateral Agent and Security Trustee agrees, unless it is unable or impractical to do so in order to preserve value of the Revolving Facility Collateral (as reasonably determined by the Collateral Agent and Security Trustee) or the rights and remedies of the Revolving Facility Secured Parties therein, to provide at least ten days’ prior written notice to the Notes Collateral Agent and Security Trustee of its intention to take any Enforcement Action with respect to a material portion of the ~~Shared~~ Revolving Facility Collateral; provided, however, that the failure to give any such notice shall not in any way limit its ability hereunder to take any such Enforcement Action. (ic) The Notes Collateral Agent and Security Trustee, for itself and on behalf of the other Noteholder Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Noteholder Security Document or any other Noteholder Document shall be deemed to prohibit, restrain or otherwise restrict in any way the rights and remedies of the Collateral Agent of and Security Trustee or the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the other Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action Facility Secured Parties with respect to the ~~Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made~~ Revolving Facility Collateral as set forth in this ~~Agreement,~~ Intercreditor Agreement and ~~(b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each~~ the other ~~agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateral~~Revolving Facility Documents.

Appears in 1 contract

Samples: Intercreditor Agreement (Jeffboat LLC)

Exercise of Rights and Remedies. At any time prior to the Discharge of ~~Priority Payment Lien~~ Revolving Credit Obligations and after the occurrence and during the continuance of a Trigger Event, Adjusted Trigger Event or Revolving Credit Event of Default, whether or not an Insolvency Proceeding has commenced by or against the Borrower or any of the ~~Pulitzer Entities~~ Loan Parties that own Shared Collateral, (A) the Revolving ~~Collateral~~ Agent ~~and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ shall have the exclusive right to exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties with respect to the Other Pari Passu Lien Obligations (other than the Revolving Agent pursuant to subclause (A) of this Section 3.01(a)) may commence or maintain any Enforcement Action with respect to the Shared Collateral; provided, however, that ~~(i)~~ the ~~Collateral~~ Agent on behalf of the Other Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (but excluding the Revolving Agent) (the “Initial Controlling Other Pari Passu Agent”) may commence an Enforcement Action after the passage of at least ~~120~~ 180 days after the earlier of (x) the date on which the Initial Controlling Other Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Other Pari Passu Lien Obligations and (y) the date on which the Revolving ~~Collateral~~ Agent received notice from the Initial Controlling Other Pari Passu Agent of such declaration of an Event of Default (the “~~Revolver~~ Initial Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default); provided, further, however, notwithstanding the expiration of ~~the Revolver~~ any Initial Standstill Period, if the Revolving ~~Collateral~~ Agent ~~or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations~~ commences an Enforcement Action, neither the Initial Controlling ~~Pari Passu Agent, the Non-Controlling~~ Other Pari Passu Agent or nor any other ~~Collateral~~ Agent on behalf of any Other Pari Passu Lien Obligations (other than the Revolving Agent pursuant to subclause (A) of this Section 3.01(a)) shall commence or continue an Enforcement Action. The Revolving ~~Agent, the Revolving Collateral~~ Agent ~~and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are~~ is under no obligation to consult with any ~~Collateral~~ Agent on behalf of any Other Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. ~~Notwithstanding~~ After the ~~foregoing~~expiration of the Initial Standstill Period, ~~(a)~~ the ~~Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each~~ Initial Controlling Other Pari Passu Agent ~~will agree,~~ is under no obligation to consult with any Agent on behalf of ~~itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate~~ any Other Pari Passu Lien Obligations or Revolving Credit Obligations (Capped) in ~~a commercially reasonable manner~~ connection with ~~each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies~~ an Enforcement Action with respect to ~~any~~ the Shared Collateral.

Appears in 1 contract

Samples: Pari Passu Intercreditor Agreement (ESH Hospitality, Inc.)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) So long as the Discharge of ~~Priority Payment~~ First Lien Obligations ~~and~~ has not occurred, whether or not an any Insolvency or Liquidation Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of the Pulitzer Entities that own Shared Collateral, (A) the Revolving~~ First Lien Collateral Agent and ~~any Additional Agent on behalf of any Additional Priority Payment~~ the other First Lien ~~Obligations~~ Secured Parties shall have the exclusive right to enforce rights and exercise remedies (including any right ~~or remedy~~ of setoff) with respect to the Collateral (including making determinations regarding the release, Disposition or restrictions with respect to the Collateral), or to commence or seek to commence any ~~Shared~~ action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), in each case, without any consultation with or the consent of the Second Lien Collateral Agent or any other Second Lien Secured Party, or the Third Lien Collateral Agent or any other Third Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, (A) the Second Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Second Lien Obligations and ~~will also~~ the Second Lien Secured Parties may vote such claims to the extent not inconsistent with the terms of this Agreement and (B) the Third Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Third Lien Obligations and the Third Lien Secured Parties may vote such claims to the extent not inconsistent with the terms of this Agreement; (ii) each of the Second Lien Collateral Agent and Third Lien Collateral Agent may take any action to perfect, preserve or protect the validity and enforceability of the Second Priority Liens and Third Priority Liens, respectively, provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens and Third Priority Liens provided in Section 3.04; (iii) the Second Lien Secured Parties and Third Lien Secured Parties may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties or Third Lien Secured Parties, respectively, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Lien Obligations and Third Lien Secured Parties, respectively, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) each of the Second Lien Collateral Agent, any Second Lien Secured Party, the Third Lien Collateral Agent and any Third Lien Secured Party may vote on a plan of reorganization; (v) each of the Second Lien Note Holders and the Third Lien Note Holders may accelerate the Second Lien Obligations and the Third Lien Obligations pursuant to the terms of the Second Lien Note Documents and the Third Lien Note Documents, respectively; and (vi) subject to Section 3.02(a), the Second Lien Collateral Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions of the Second Lien Secured Parties described in this proviso being referred to herein as the Second Lien Permitted Actions and the actions of the Third Lien Secured Parties described in this proviso being referred to herein as the Primary Third Lien Permitted Actions). After the Discharge of First Lien Obligations and so long as the Discharge of Second Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Collateral Agent and the other Second Lien Secured Parties shall have the exclusive right to ~~determine~~ enforce rights and exercise remedies (including any right of setoff) with respect to the ~~time and method and place for exercising such right~~ Collateral (including making determinations regarding the release, Disposition or ~~remedy~~ restrictions with respect to the Collateral), or ~~conducting~~ to commence or seek to commence any action or proceeding with respect ~~thereto~~ to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), in each case, without any consultation with or the consent of the Third Lien Collateral Agent or any other Third Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, the Third Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Third Lien Obligations and the Third Lien Secured Parties may vote such claims to the extent not inconsistent with the terms of this Agreement; (ii) the Third Lien Collateral Agent may take any action to perfect, preserve or protect the validity and enforceability of the Third Priority Liens, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Second Priority Liens or the rights of the Second Lien Collateral Agent or any other Second Lien Secured Party to exercise remedies in respect thereof or (B) ~~none~~ otherwise inconsistent with the terms of this Agreement, including the automatic release of Third Priority Liens provided in Section 3.04; (iii) the Third Lien Secured Parties may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Third Lien Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Third Lien Secured Parties, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) each of the Third Lien Collateral Agent and any Third Lien Secured Party may vote on a plan of reorganization; and (v) the Third Lien Note Holders may accelerate the Third Lien Obligations pursuant to the terms of the Third Lien Note Documents (the actions described in this proviso being referred to herein as the Secondary Third Lien Permitted Actions and, together with the Primary Third Lien Permitted Actions, the Third Lien Permitted Actions). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Collateral Agent and the other Second Lien Secured Parties with respect to the ~~Pari Passu~~ Collateral shall be to receive a share of the proceeds of the Collateral, if any, after the Discharge of First Lien Obligations ~~may commence or maintain any Enforcement Action~~ has occurred and in accordance with the Second Lien Note Documents and applicable law. Except for the Third Lien Permitted Actions, unless and until the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has occurred, the sole right of the Third Lien Collateral Agent and the other Third Lien Secured Parties with respect to the ~~Shared~~ Collateral shall be to receive a share of the proceeds of the Collateral~~; provided~~, ~~however~~if any, ~~that~~ after the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has occurred and in accordance with the Third Lien Note Documents and applicable law. (ib) Subject to the limitations set forth herein, including Section 3.01(a) above, in exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the other First Lien Secured Parties may enforce the provisions of the First Lien Note Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The First Lien Collateral Agent agrees to provide at least five days prior written notice to the Second Lien Collateral Agent and the Third Lien Collateral Agent of its intention to foreclose upon or Dispose of any Collateral. (c) Subject to the ~~Pari Passu~~ limitations set forth herein, including Section 3.01(a) above, in exercising rights and remedies with respect to the Collateral in accordance with this Agreement, the Second Lien ~~Obligations~~ Collateral Agent and the other Second Lien Secured Parties may enforce the provisions of the Second Lien Note Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the ~~largest outstanding aggregate principal amount at such time (~~rights and remedies of a secured creditor under the ~~“Controlling Pari Passu Agent”) may commence an Enforcement Action after~~ Uniform Commercial Code, the ~~passage of~~ Bankruptcy Code or any other Bankruptcy Law. The Second Lien Collateral Agent agrees to provide at least ~~120~~ five days ~~after~~ prior written notice to the ~~earlier~~ Third Lien Collateral Agent of its intention to foreclose upon or Dispose of any Collateral. (d) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Collateral Document or any other Second Lien Note Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Lien Note Documents. (e) The Third Lien Collateral Agent, for itself and on behalf of the other Third Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Third Lien Collateral Document or any other Third Lien Note Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Secured Parties, or the Second Lien Collateral Agent or the other Second Lien Secured Parties with respect to the Collateral as set forth in this Agreement, the First Lien Note Documents and the Second Lien Note Documents. (f) Notwithstanding anything in this Agreement to the contrary, following the acceleration of the Indebtedness then outstanding under the First Lien Purchase Agreement (prompt notice of which shall be given by the First Lien Collateral Agent to the Second Lien Collateral Agent and the Third Lien Collateral Agent), the Second Lien Secured Parties may, at their sole expense and effort, upon notice to Company and the First Lien Collateral Agent, require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties, without warranty or representation or recourse, all (but not less than all) of the First Lien Obligations; provided that (x) ~~the date on which the Controlling Pari Passu Agent declared the existence~~ such assignment shall not conflict with any law, rule or regulation or order of ~~an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations~~ any court or other Governmental Authority having jurisdiction, and (y) the ~~date on which~~ Second Lien Secured Parties shall have paid to the ~~Revolving~~ First Lien Collateral ~~Agent received notice from~~ Agent, for the ~~Controlling Pari Passu Agent~~ account of the First Lien Secured Parties, in immediately available funds, an amount equal to 100% of the principal of such ~~declaration of an Event of Default (~~Indebtedness plus all accrued and unpaid interest thereon plus all applicable premiums plus all accrued and unpaid fees plus all the ~~“Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu~~ other First Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Actionthen outstanding. ~~The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation~~ In order to ~~consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding~~ effectuate the foregoing, ~~(a)~~ the ~~Secured Parties~~ First Lien Collateral Agent shall ~~remain subject to~~calculate, ~~and bound by~~upon the written request of the Second Lien Collateral Agent from time to time, ~~all covenants or agreements made~~ the amount in ~~this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties,~~ cash that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect would be necessary to ~~any Shared Collateral~~purchase the First Lien Obligations.

Appears in 1 contract

Samples: Intercreditor Agreement (NextWave Wireless Inc.)

Exercise of Rights and Remedies. At (a) So long as any ~~time prior to~~ of the ~~Discharge of Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower~~ Senior Debt Documents remain in effect or any of the ~~Pulitzer Entities that own Shared Collateral~~Senior Obligations remain outstanding, ~~(A)~~ the ~~Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ Senior Lender shall have the exclusive right to carry out the provisions of the Senior Debt Documents and to enforce and collect any loans or advances included within the Senior Collateral, or the Senior Obligations secured thereby and to exercise and enforce all rights and privileges accruing to the Senior Lender by reason of the Senior Debt Documents and any other agreements, security, guaranties or claims given to the Senior Lender in connection therewith, all in the Senior Lender's sole discretion and in the exercise of its sole business judgment. This includes more specifically, without limitation, the rights: (i) in the Senior Lender’s sole discretion, to make overadvances or other extensions of credit to the Company in excess of the amounts otherwise available to the Company under the Senior Debt Documents, (ii) to effect collection of all Senior Collateral and to settle and adjust the amounts due thereon directly with the applicable Portfolio Obligors (to the extent provided in and as defined in the Senior Debt Documents), (iii) to sell or otherwise dispose of Senior Collateral, and (iv) to incur expenses in relation to the foregoing; all as may be necessary in the Senior Lender's reasonable discretion, and all as more fully provided in the Senior Debt Documents and to exercise all the rights and remedies of a secured lender under the UCC. In exercising its rights as aforesaid, the Senior Lender agrees that it shall handle all transactions relating to the Senior Collateral in accordance with its usual practices in the ordinary course of its business. The Trustee agrees that, so long as the Company may be indebted or obligated to the Senior Lender in any manner whatsoever under the Senior Debt Documents, the Trustee shall not exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties rights with respect to the ~~Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect to~~ Senior Collateral, the ~~Shared Collateral; provided~~Purchased Assets and the stock of NFASC, ~~however, that (i) the Collateral Agent of the Pari Passu Lien Obligations~~ except in compliance with the ~~largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage~~ terms and conditions of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent this Agreement and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and Senior Debt Documents. (b) ~~each Agent will agree~~At the request of the Senior Lender, the Trustee shall promptly release any and all security interests, liens, claims and/or rights which they may have on ~~behalf~~ or in the Senior Collateral to facilitate the collection, sale or other disposition of ~~itself and its related secured parties, that~~ such ~~Agent and its Related Secured Parties shall cooperate~~ Senior Collateral by the Senior Lender or by the Company (with the written consent of the Senior Lender) so long as the Proceeds thereof are applied in ~~a commercially reasonable manner~~ accordance with ~~each other agent or trustee and its related secured parties in any enforcement~~ the provisions of ~~rights or any exercise~~ Section 9 of ~~remedies with respect to any Shared Collateral~~this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Navistar Financial Corp)

Exercise of Rights and Remedies. ~~At any time prior~~ (a) Subject to the terms of this Agreement, until the Discharge of ~~Priority Payment~~ the First Lien Obligations ~~and whether or not an Insolvency Proceeding has commenced by or against~~ occurs, the ~~Borrower or any~~ First Lien Collateral Agent shall be entitled to deal with the Shared Collateral Documents upon the instruction of the ~~Pulitzer Entities that own Shared Collateral, (A)~~ First Lien Administrative Agent in accordance with the ~~Revolving~~ terms of the First Lien Credit Documents as if the Liens of the Second Lien Collateral Agent ~~and any Additional Agent on behalf of any Additional Priority Payment~~ under the Second Lien ~~Obligations shall have the exclusive right to exercise any right or remedy with respect to any Shared~~ 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 and (B) none of the Secured Parties with respect to the Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect to the Shared Collateral; providedDocuments did not exist, ~~however, that~~ except that: (i) the First Lien Collateral Agent may not foreclose on any Mortgage which covers any real property Collateral located in the state of California or in any other jurisdiction that has anti-deficiency laws similar to California Code of Civil Procedure ss.726, without the consent of the ~~Pari Passu~~ Second Lien ~~Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu~~ Collateral Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and ; (ii) the First Lien Collateral Agent may not release any Liens on any Collateral covered by the Shared Collateral Documents without the consent of the ~~Pari Passu~~ Second Lien ~~Obligations~~ Collateral Agent, except as expressly set forth in this Agreement; (iii) upon the termination of a Standstill Period, the Second Lien Collateral Agent, on instruction of the Paying Agent, may direct the Shared Lien Collateral Agent, and the Shared Lien Collateral Agent agrees, to act in order to exercise the rights and remedies of the Second Lien Collateral Agent in accordance with Section 3 hereto; and (iv) At any time that the ~~second largest outstanding aggregate principal amount~~ Shared Lien Collateral Agent, in such capacity, exercises rights and remedies against Collateral pursuant to the Shared Collateral Documents upon direction of the First Lien Collateral Agent pursuant to instruction from the First Lien Administrative Agent, the Shared Lien Collateral Agent shall be indemnified by the Grantors and the First Lien Lenders as provided in Section 10.03 of the First Lien Credit Agreement to the same extent that the First Lien Collateral Agent is indemnified by the Grantors and the First Lien Lenders thereunder. In furtherance hereof, First Lien Administrative Agent agrees that Shared Lien Collateral Agent is an acknowledged third party beneficiary of the indemnification provided to the First Lien Collateral Agent under Section 10.03 of the First Lien Credit Agreement. (v) At any time that the Shared Lien Collateral Agent, in such capacity, exercises rights and remedies against Collateral pursuant to the Shared Collateral Documents upon direction of the Second Lien Collateral Agent pursuant to instruction from the Paying Agent, the Shared Lien Collateral Agent shall be entitled to indemnification by the Grantors and Second Lien Lenders as provided in Section 10.03 of the Second Lien Credit Agreement to the same extent that the Second Lien Collateral Agent is indemnified by the Grantors and the Second Lien Lenders thereunder. In furtherance hereof, the Paying Agent agrees that the Shared Lien Collateral Agent is an acknowledged third party beneficiary of the indemnification provided to the Second Lien Collateral Agent under Section 10.03 of the Second Lien Credit Agreement. (b) The rights of the Second Lien Collateral Agent shall at ~~such time (~~times be subject to the ~~“Non-Controlling Pari Passu~~ terms of this Agreement and to the First Lien Collateral Agent~~”) may commence an Enforcement Action after~~ 's rights under the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu First Lien ~~Obligations and (y) the date on which the Revolving~~ Credit Documents. First Lien Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Second Lien Collateral Agent ~~or any other Collateral Agent on behalf~~ each agree that each provision of ~~any Additional Priority Payment Lien Obligations commences an Enforcement Action~~this Agreement, ~~neither the Controlling Pari Passu Agent~~including without limitation Sections 4, ~~the Non-Controlling Pari Passu Agent or any other Collateral Agent~~ 5 and 6 of ~~any Pari Passu Lien Obligations~~ this Agreement, shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect apply to the Shared ~~Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by~~Collateral Documents, all ~~covenants or agreements made in this Agreement,~~ Mortgages and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateralall Accounts.

Appears in 1 contract

Samples: Collateral Agency and Intercreditor Agreement (Krispy Kreme Doughnuts Inc)

Exercise of Rights and Remedies. ~~At any time~~ (a) Notwithstanding the purported equal priority of the Liens securing each Class of First Lien Obligations, prior to the Discharge of the Payment Priority Obligations, for a period of 180 days following the occurrence of any Event of Default (any such period, a “Standstill Period”), the Credit Agreement Collateral Agent may deal with the Shared Collateral during such Standstill Period as if the Liens thereon of the Collateral Agent or Secured Parties of any other Class did not exist, and no Collateral Agent or Related Secured Party (other than the Credit Agreement Collateral Agent and its Related Secured Parties), whether in their capacity as secured or unsecured creditor, shall (i) commence any judicial or nonjudicial foreclosure proceedings (including any Insolvency or Liquidation Proceeding) with respect to, seek to have a trustee, receiver, receiver-manager, monitor, liquidator, examiner or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral) or (ii) exercise any rights or remedies under the Security Documents that have or may have arisen, or that may arise, as a result of such default. (b) Without limiting the foregoing, following the relevant Payment ~~Lien~~ Priority Obligations Expiry Date, the Applicable Authorized Representative will have the sole right (solely as between all Collateral Agents for each Class of Pari Passu Secured Obligations, it being understood and agreed that nothing contained in this Section 3.01(b) shall in any way affect the rights of the Credit Agreement Collateral Agent and the holders of Payment Priority Obligations to take action with respect to the Shared Collateral) to act or refrain from acting with respect to the Shared Collateral, and no Collateral Agent in respect of any Pari Passu Secured Obligations (other than the Applicable Authorized Representative), whether in their capacity as a secured or unsecured creditor, shall commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, receiver-manager, monitor, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interests in or realize upon, or take any other action available to it in respect of, the Shared Collateral. (c) Subject to the other paragraphs of this Section and Section 4.01(a), nothing in this Agreement shall affect the ability of any Collateral Agent or any of its Related Secured Parties (i) to enforce any rights and exercise any remedies with respect to any Shared Collateral available under any Related Secured Credit Documents or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Shared Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code or other personal property security legislation of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to the other paragraphs of this Section and Section 4.01(a), any such exercise of rights and remedies by any Collateral Agent or any of its Related Secured Parties may be made in such order and in such manner as such Collateral Agent or its Related Secured Parties may, subject to the provisions of their Related Secured Credit Documents, determine in their sole discretion. In addition, to the extent it is not an prohibited from doing so under its Related Secured Credit Documents, (A) in any Insolvency or Liquidation Proceeding ~~has~~ commenced by or against the Borrower or any ~~of the Pulitzer Entities that own Shared Collateral~~other Grantor, ~~(A) the Revolving~~ each Collateral Agent ~~and~~ or any ~~Additional Agent on behalf~~ of any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise any right or remedy with respect to any Shared 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 and (B) none of the its Related Secured Parties may file a proof of claim or statement of interest with respect to the ~~Pari Passu~~ applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Collateral Agent or its Related Secured Parties may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien ~~Obligations~~ of such Collateral Agent or Related Secured Party, (C) each Collateral Agent or its Related Secured Parties may ~~commence~~ file any pleadings, objections, motions, or ~~maintain~~ agreements which assert rights available to unsecured creditors of the Borrower or any ~~Enforcement Action with respect~~ other Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and (D) each Collateral Agent and its Related Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor, in each case (A) through (D) above to the ~~Shared Collateral; provided~~extent such action is not inconsistent with, ~~however~~or could not result in a resolution inconsistent with, ~~that~~ the terms of this Agreement. (d) Notwithstanding paragraph (c) of this Section: (i) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving each Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the its Related Secured Parties shall remain subject to, and bound by, all covenants or agreements made ~~in this Agreement, and~~ herein by or on behalf of such Collateral Agent or its Related Secured Parties; (bii) each Collateral Agent ~~will agree~~agrees, on behalf of itself and its ~~related secured parties~~Related Secured Parties, that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Shared Collateral by such Collateral Agent or any of its Related Secured Parties, such Collateral Agent or its Related Secured Party, as the case may be, shall provide prior written notice thereof to each other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform each other Collateral Agent of developments in connection with such enforcement or exercise (except that the Credit Agreement Collateral Agent shall only be required to deliver written notice of any such enforcement or exercise promptly upon commencement thereof); and (iii) subject to the terms and conditions of each Collateral Agent’s Related Secured Credit Documents, each Collateral Agent (other than the Credit Agreement Collateral Agent) agrees, on behalf of itself and its Related Secured Parties, that such Collateral Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other ~~agent or trustee~~ Collateral Agent and its ~~related secured parties~~ Related Secured Parties in any enforcement of rights or any exercise of remedies with respect to any Shared Collateral; provided, however, that nothing in this section shall require any Collateral Agent to cooperate with any other Collateral Agent if it has not received the appropriate or necessary consents, waivers, direction or indemnity from its Related Secured Parties. (e) Notwithstanding anything otherwise to the contrary herein, to the extent provided in the Senior Secured Notes Documents or the Additional First Lien Obligations Documents with respect to any Pari Passu Secured Obligations for which the Notes Collateral Agent is also acting as collateral agent, the Notes Collateral Agent will be permitted to exercise remedies and sell the Collateral under the Security Documents only at the direction of the agents or representatives (including the Senior Secured Notes Trustee in the case of the Senior Secured Notes Secured Parties) who are authorized to act on behalf of the Senior Secured Notes Secured Parties or the Additional Secured Parties for which the Notes Collateral Agent is acting as collateral agent, as applicable, or at the direction of the holders of a majority in the principal amount of the outstanding Senior Secured Notes Obligations and any outstanding Additional First Lien Obligations for which the Collateral Agent is acting as collateral agent voting as a single class.

Appears in 1 contract

Samples: Intercreditor and Collateral Agency Agreement (Styron Canada ULC)

Exercise of Rights and Remedies. At (a) So long as any ~~time prior to~~ of the ~~Discharge of Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower~~ Senior Debt Documents remain in effect or any of the ~~Pulitzer Entities that own Shared Collateral~~Senior Obligations remain outstanding, ~~(A)~~ the ~~Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations~~ Senior Lender shall have the exclusive right to carry out the provisions of the Senior Debt Documents and to enforce and collect any loans or advances included within the Senior Collateral, or the Senior Obligations secured thereby and to exercise and enforce all rights and privileges accruing to the Senior Lender by reason of the Senior Debt Documents and any other agreements, security, guaranties or claims given to the Senior Lender in connection therewith, all in the Senior Lender’s sole discretion and in the exercise of its sole business judgment. This includes more specifically, without limitation, the rights: (i) in the Senior Lender’s sole discretion, to make overadvances or other extensions of credit to the Company in excess of the amounts otherwise available to the Company under the Senior Debt Documents, (ii) to effect collection of all Senior Collateral and to settle and adjust the amounts due thereon directly with the applicable Portfolio Obligors (to the extent provided in and as defined in the Senior Debt Documents), (iii) to sell or otherwise dispose of Senior Collateral, and (iv) to incur expenses in relation to the foregoing; all as may be necessary in the Senior Lender’s reasonable discretion, and all as more fully provided in the Senior Debt Documents and to exercise all the rights and remedies of a secured lender under the UCC. In exercising its rights as aforesaid, the Senior Lender agrees that it shall handle all transactions relating to the Senior Collateral in accordance with its usual practices in the ordinary course of its business. The Trustee agrees that, so long as the Company may be indebted or obligated to the Senior Lender in any manner whatsoever under the Senior Debt Documents, the Trustee shall not exercise any right or remedy with respect to any Shared 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 and (B) none of the Secured Parties rights with respect to the ~~Pari Passu Lien Obligations may commence or maintain any Enforcement Action with respect to~~ Senior Collateral, the ~~Shared Collateral; provided~~Purchased Assets and the stock of NFASC, ~~however, that (i) the Collateral Agent of the Pari Passu Lien Obligations~~ except in compliance with the ~~largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage~~ terms and conditions of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent this Agreement and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and Senior Debt Documents. (b) ~~each Agent will agree~~At the request of the Senior Lender, the Trustee shall promptly release any and all security interests, liens, claims and/or rights which they may have on ~~behalf~~ or in the Senior Collateral to facilitate the collection, sale or other disposition of ~~itself and its related secured parties, that~~ such ~~Agent and its Related Secured Parties shall cooperate~~ Senior Collateral by the Senior Lender or by the Company (with the written consent of the Senior Lender) so long as the Proceeds thereof are applied in ~~a commercially reasonable manner~~ accordance with ~~each other agent or trustee and its related secured parties in any enforcement~~ the provisions of ~~rights or any exercise~~ Section 9 of ~~remedies with respect to any Shared Collateral~~this Agreement.

Appears in 1 contract

Samples: Intercreditor Agreement (Navistar Financial Corp)

Exercise of Rights and Remedies. ~~At any time prior~~ (a) Until the earliest to ~~the Discharge~~ occur of ~~Priority Payment Lien Obligations and whether or not an Insolvency Proceeding has commenced by or against the Borrower or~~ any of the ~~Pulitzer Entities that own Shared Collateral,~~ following: (Ai) the ~~Revolving Collateral~~ Senior Discharge Date; (ii) receipt by the Indenture Agent of written notice from the Administrative Agent that any Enforcement Action has been completed in consequence of which the Administrative Agent consents to the Indenture Agent commencing any Enforcement Action; or (iii) the later of (x) 180 days after the declaration by the Administrative Agent or the Indenture Agent (the “declaring agent”) of an Event of Default in consequence of which the declaring agent has given written notice to the other Representative that the Indenture Obligations or the First Priority Claims of the Grantors owed to such agent’s Secured Parties are then immediately due and ~~any Additional Agent on behalf~~ payable (whether by acceleration or otherwise; unless: (1) the declaring agent, with the consent of ~~any Additional Priority Payment Lien Obligations shall have~~ its requisite required lenders or Note Holders, as applicable, has entered into a forbearance agreement with the ~~exclusive right to exercise any right or remedy~~ Grantors with respect to ~~any Shared Collateral and will also have~~ such Event of Default, (2) the exclusive right to determine the time and method and place for exercising such right or remedy or conducting any proceeding with respect thereto and (B) none of the Secured Parties with respect to the Pari Passu Lien Obligations may commence or maintain any Administrative Agent is diligently pursuing an Enforcement Action with respect to all or a material portion of the ~~Shared Collateral; provided, however, that~~ Credit Facility Collateral or (i3) the ~~Collateral Agent~~ acceleration of the ~~Pari Passu Lien~~ applicable Indenture Obligations ~~with~~ or First Priority Claims by the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and declaring agent has been rescinded); or (y) the date on which the ~~Revolving Collateral Agent received notice from the Controlling Pari Passu Agent~~ Administrative Agent, for a period of thirty (30) days or more, has ceased to diligently pursue such ~~declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent~~ Enforcement Action against all or a material portion of the ~~Pari Passu Lien Obligations with~~ Credit Facility Collateral, whether or not any Insolvency Proceeding has been commenced; the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Administrative Agent and the ~~Controlling Pari Passu Agent received notice from~~ Credit Facility Secured Parties shall have the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or exclusive right to take any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the ~~Shared~~ Credit Facility Collateral~~. Notwithstanding~~ , in each case, without any consultation with or the ~~foregoing, (a)~~ consent of the ~~Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each~~ Indenture Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any other Indenture Secured Party; provided, that, the 180 day and 30 day periods referenced in clause (iii) above may be tolled if the Administrative Agent is prohibited from undertaking any Enforcement Action due to (and during the pendency of) any stay or other order prohibiting the exercise of remedies with respect to the Credit Facility Collateral that has been entered by a court of competent jurisdiction. Notwithstanding the foregoing, the Indenture Secured Parties may: (1) in any ~~Shared~~ Insolvency Proceeding, file a claim, proof of claim or statement of interest with respect to the Indenture Obligations; provided, that, in the event the Indenture Agent has failed to file any such proof of claim or statement of interest within five (5) days prior to the bar date applicable to such claim, the Administrative Agent may (but shall not be obligated to) file any such proof of claim or statement of interest on behalf of the Indenture Agent and the Indenture Secured Parties; provided, further, that, (A) if the Administrative Agent files any such proof of claim as contemplated above and the Indenture Secured Parties shall subsequently timely file a proper proof of claim in such Insolvency Proceeding, such subsequent proper proof of claim filed by the Indenture Secured Parties shall supersede any such proof of claim theretofore filed by the Administrative Agent on behalf of the Indenture Agent and the Indenture Secured Parties and such proof of claim theretofore filed by the Administrative Agent on behalf of the Indenture Agent and the Indenture Secured Parties shall thereupon be deemed to be withdrawn, and (B) the foregoing provisions of this clause (1) shall not be construed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Indenture Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Indenture Obligations; (2) take any action to create, perfect, preserve or protect the validity and enforceability of the Junior Liens; provided, that no such action is, or could reasonably be expected to be, (A) adverse to the priority, validity or enforceability status of the Senior Liens or the rights of the Administrative Agent or any other Credit Facility Secured Party to exercise remedies in respect thereof or (B) inconsistent with the terms of this Intercreditor Agreement, including, without limitation, the automatic release of Junior Liens provided for in Section 3.04; (3) 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 Indenture Secured Parties, including any claims secured by the Credit Facility Collateral, or otherwise make any agreements or file any motions pertaining to the Indenture Obligations, in each case, to the extent not inconsistent with the terms of this Intercreditor Agreement; (4) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Credit Facility Collateral initiated by the Administrative Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with the exercise of remedies by the Administrative Agent (it being understood that neither the Indenture Agent nor any Indenture Secured Party shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein); (5) engage consultants, valuation firms, investment bankers, and perform or engage third parties to perform audits, examinations and appraisals of the Credit Facility Collateral for the sole purpose of valuing the Credit Facility Collateral and not for the purpose of marketing or conducting a disposition of such Credit Facility Collateral; provided, however, that the Indenture Secured Parties shall not take any of the foregoing actions if they would interfere with the exercise of remedies by the Administrative Agent; (6) vote on any plan of reorganization, file any proof of claim, or make any other filings or motions that are, in each case, not inconsistent with the terms of this Intercreditor Agreement, with respect to the Indenture Obligations and the Credit Facility Collateral; (7) file and pursue a lawsuit against the Administrative Agent and/or any Credit Facility Lender for breach or non-performance of any payment obligations pursuant hereto; (8) impose the default interest (and interest on interest) under the Indenture; and (9) exercise rights and remedies as unsecured creditors to the extent (and only to the extent) provided in Section 3.03 (the actions described in clauses (a)(1) through (a)(9) above of this Section 3.01 being referred to herein as the “Permitted Enforcement Actions”). Except for the Permitted Enforcement Actions, unless and until the Standstill Period has expired), the sole rights of the Indenture Agent and the other Indenture Secured Parties with respect to the Credit Facility Collateral shall be to enforce the terms of this Intercreditor Agreement and receive such Credit Facility Collateral (or the proceeds thereof), if any, remaining after the Senior Discharge Date has occurred (to the extent (and only to the extent) required by the Indenture Documents). NOTHING IN THIS SECTION 3.01(a) OR OTHERWISE IN THIS INTERCREDITOR AGREEMENT SHALL LIMIT, WAIVE, DIMINISH, DELAY, FORBEAR, RELEASE, RELINQUISH, TERMINATE, SURRENDER, SUBORDINATE, SUSPEND, OR OTHERWISE IMPAIR ANY OF THE INDENTURE SECURED PARTIES’ RIGHTS AND REMEDIES UNDER THE INDENTURE DOCUMENTS, APPLICABLE LAW, OR OTHERWISE AGAINST ANY INDENTURE OBLIGOR THAT IS NOT A GRANTOR OR AGAINST THE INDENTURE COLLATERAL, AND THE PRODUCTS AND PROCEEDS THEREOF ALL OF WHICH RIGHTS AND REMEDIES ARE HEREBY EXPRESSLY RESERVED AND AFFIRMED. After the expiration of the Standstill Period, the Indenture Agent may take any Enforcement Action including any Disposition with respect to the Credit Facility Collateral; provided that the Indenture Agent shall provide notice to the Administrative Agent of its election to take such Enforcement Action. In the event of any Disposition of the Credit Facility Collateral, the Administrative Agent and the Credit Facility Secured Parties shall (i) upon the request of the Indenture Agent with respect to such Credit Facility Collateral, and concurrent with such Disposition, release or otherwise terminate its Liens on such Credit Facility Collateral (it being understood that the Credit Facility Secured Parties shall still, subject to this Intercreditor Agreement, have a security interest with respect to the proceeds of such Credit Facility Collateral) and (ii) deliver such terminations of financing statements, partial lien releases, mortgage satisfactions and discharges, endorsements, assignments or other instruments of transfer, termination or release and take such further actions as the Indenture Secured Parties may reasonably require in connection therewith; provided, that the Indenture Liens and security interest on such Credit Facility Collateral that is subject to such Disposition are concurrently released or terminated and the Indenture Agent shall have provided to the relevant Indenture Obligors comparable terminations of financing statements, partial lien releases, mortgage satisfactions and discharges, endorsements, assignments or other instruments of transfer, termination or release and, subject to and in accordance with Section 4.01, the Indenture Agent shall cause to be paid and/or delivered directly to the Credit Facility Agent all proceeds of any such Disposition of Credit Facility Collateral. (b) In exercising rights and remedies with respect to the Credit Facility Collateral, the Administrative Agent and the other Credit Facility Secured Parties may enforce the provisions of the Credit Facility Security Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include, without limitation, the rights of an agent appointed by them to Dispose of Credit Facility Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code in effect in any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law, with respect to such Collateral. The Administrative Agent agrees, unless it is unable or impractical to do so in order to preserve the value of the Credit Facility Collateral (as reasonably determined by the Administrative Agent) or the rights and remedies of the Credit Facility Secured Parties therein, to provide at least seven (7) Business Days’ prior written notice to the Indenture Agent of its intention to take any Enforcement Action with respect to the Credit Facility Collateral; provided, however, that the failure to give any such notice shall not in any way limit its ability hereunder to take any such Enforcement Action. (c) The Indenture Agent, for itself and on behalf of the other Indenture Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Indenture Security Agreement or any other Indenture Document shall be deemed to prohibit, restrain or otherwise restrict in any way the rights and remedies of the Administrative Agent or the other Credit Facility Secured Parties with respect to the Credit Facility Collateral as set forth in this Intercreditor Agreement and the other Credit Facility Documents.

Appears in 1 contract

Samples: Intercreditor Agreement (Affinity Guest Services, LLC)

Exercise of Rights and Remedies. ~~At any time prior to~~ Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties: (a) will not, so long as the Discharge of ~~Priority Payment~~ First Lien ~~Obligations and whether~~ Debt (other than the First Lien Debt Excess) has not occurred, enforce or ~~not an Insolvency Proceeding has commenced by~~ exercise, or ~~against the Borrower~~ seek to enforce or exercise, any ~~of the Pulitzer Entities that own Shared Collateral,~~ rights or remedies (~~A) the Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment Lien Obligations shall have the exclusive right to exercise~~ including any right of setoff or ~~remedy~~ notification of account debtors) with respect to any ~~Shared~~ Collateral ~~and will also have~~ (including the ~~exclusive~~ enforcement of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to ~~determine the time and method and place for exercising such right~~ which Second Lien Agent or ~~remedy~~ any other Second Lien Secured Party is a party) or ~~conducting~~ commence or join with any Person (other than First Lien Agent) in commencing, or filing a petition for, any action or proceeding with respect ~~thereto~~ to such rights or remedies (including any such enforcement or exercise in any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided, that, subject at all times to the provisions of Section 4 of this Intercreditor Agreement, Second Lien Agent may enforce or exercise any or all such rights and remedies, or commence or petition for any such action or proceeding, after a period ending (Bi) ~~none of the Secured Parties~~ with respect to any Second Lien Non-Payment Default, the ~~Pari Passu~~ date which is one hundred eighty (180) days after the receipt by First Lien ~~Obligations may commence~~ Agent of a Second Lien Default Notice from the Second Lien Agent declaring, in writing, the occurrence of such Second Lien Non-Payment Default or ~~maintain any Enforcement Action~~ (ii) with respect to any Second Lien Payment Default, the ~~Shared Collateral; provided, however, that~~ date which is one hundred twenty (i120) the Collateral Agent of the Pari Passu Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the ~~earlier~~ receipt by First Lien Agent of ~~(x)~~ a Second Lien Default Notice from the ~~date on which~~ Second Lien Agent declaring, in writing, the ~~Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount~~ occurrence of such ~~Pari Passu~~ Second Lien ~~Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of~~ Payment Default (the “~~Revolver~~ Standstill Period”~~) and (ii) the Collateral Agent~~ ); provided, that, as of the ~~Pari Passu~~ expiration of the Standstill Period, the applicable Second Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default ~~and demanded~~ that was the ~~repayment~~ subject of ~~all~~ the ~~principal amount~~ Second Lien Default Notice received by First Lien Agent which commenced the applicable Standstill Period remains uncured, unremedied or unwaived as of ~~such Pari Passu Lien Obligations and (y)~~ the ~~date on which~~ expiration of the ~~Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default~~Standstill Period; provided, further, however, that, notwithstanding the expiration of the ~~Revolver~~ Standstill ~~Period~~Period or anything herein to the contrary, ~~if the Revolving Collateral~~ in no event shall Second Lien Agent or any other ~~Collateral Agent on behalf of~~ Second Lien Secured Party enforce or exercise any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or ~~any exercise of~~ remedies with respect to any ~~Shared~~ Collateral, or commence or petition for any such action or proceeding (including the taking such enforcement or exercise in any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), if First Lien Agent or any other First Lien Secured Party shall have commenced, prior to the expiration of the Standstill Period, a Lien Enforcement Action and shall be pursuing the same in good faith (including, without limitation, any of the following, if undertaken and pursued to consummate the sale of such Collateral within a commercially reasonable time: solicitation of bids from third parties to conduct the liquidation of all or any material portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any material portion of the Collateral, the notification of account debtors to make payments to First Lien Agent or its agents, the initiation of any action to take possession of all or any material portion of the Collateral or the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Collateral); (b) will not contest, protest or object to any Lien Enforcement Action brought by First Lien Agent or any other First Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Documents or otherwise, so long as the Liens of Second Lien Agent attach to the proceeds thereof subject to the relative priorities set forth in Section 2.2 and such actions or proceedings are being pursued in good faith; (c) will not object to the forbearance by First Lien Agent or the other First Lien Secured Parties from commencing or pursuing any Lien Enforcement Action or any other enforcement or exercise of any rights or remedies with respect to any of the Collateral; (d) will not, so long as the Discharge of First Lien Debt (other than the First Lien Debt Excess) has not occurred and except for actions permitted under Sections 3.1(a) above, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation); (e) will not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Documents, including any sale or other disposition of any Collateral, whether by foreclosure or otherwise and acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Document shall be deemed to restrict in any way the rights and remedies of First Lien Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Intercreditor Agreement and the First Lien Documents; (f) will not object to the manner in which First Lien Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Debt or the Liens of such First Lien Secured Party, regardless of whether any action or failure to act by or on behalf of First Lien Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (f); provided, that, at all times First Lien Agent is acting in good faith; and (g) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Debt or any Lien of First Lien Agent or this Intercreditor Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Intercreditor Agreement. Notwithstanding anything to the contrary set forth in this Section 3.1 or elsewhere in this Intercreditor Agreement, the Second Lien Secured Parties shall at all times be permitted to take any Permitted Second Lien Action against any Grantor.

Appears in 1 contract

Samples: Intercreditor Agreement (Castle a M & Co)

Exercise of Rights and Remedies. ~~At any time prior to~~ (a) So long as the Discharge of ~~Priority Payment~~ First Lien Obligations ~~and~~ has not occurred, whether or not an any Insolvency Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of the Pulitzer Entities that own Shared Collateral, (A) the Revolving Collateral~~ First Lien Administrative Agent and ~~any Additional Agent on behalf of any Additional Priority Payment~~ the other First Lien ~~Obligations~~ Secured Parties shall have the exclusive right to ~~exercise~~ (i) commence and maintain any ~~right~~ Enforcement Action (including rights to set-off or ~~remedy~~ credit bid), (ii) subject to Section 3.04, make determinations regarding the release or Disposition of, or restrictions with respect to, the Collateral, and (iii) otherwise enforce the rights and remedies of a secured creditor under the UCC and Bankruptcy Laws of any applicable jurisdiction, so long as any proceeds received by the First Lien Administrative Agent in excess of those necessary to achieve Discharge of First Lien Obligations are distributed in accordance with the UCC and applicable law, subject to the relative priorities described in Section 2.01, without any consultation with or the consent of the Second Lien Administrative Agent or any other Second Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency Proceeding, the Second Lien Administrative Agent and any Second Lien Secured Party may file a proof of claim or statement of interest with respect to the Second Lien Obligations; (ii) the Second Lien Administrative Agent may take any ~~Shared~~ action to preserve or protect the validity and enforceability of the Second Priority Liens, provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Lien Administrative Agent or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in Section 3.04; (iii) the Second 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 the disallowance of the claims of the Second Lien Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Lien Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Second Lien Secured Parties may exercise rights and ~~will also have~~ remedies as unsecured creditors, as provided in Section 3.03; (v) the ~~exclusive right to determine the time and method and place~~ Second Lien Secured Parties may (A) present a cash bid for ~~exercising such right~~ Collateral or ~~remedy~~ purchase Collateral for cash at any Section 363 hearing or ~~conducting~~ at any ~~proceeding with respect thereto~~ public or judicial foreclosure sale and (B) ~~none~~ credit bid for Collateral pursuant to Section 363(k) of the Bankruptcy Code (provided that such credit bid may only be made if the Discharge of First Lien Obligations has occurred or will occur concurrently as a result of a cash bid for such Collateral in addition to such credit bid); provided, however, in no event shall the bid pursuant to this Section 3.01(a)(v) be less than the amount in cash that would be necessary to purchase the First Lien Obligations pursuant to Section 3.01(d) hereof; (vi) the Second Lien Secured Parties shall be entitled to vote on any plan of reorganization, to the extent consistent with the provisions hereof; and (vii) subject to Section 3.02(a), the Second Lien Administrative Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period, including, without limitation, the right to require the Master General Partner to immediately withdraw its ownership interest in any or all of the Participating Partnerships in the form of a working interest in the production from the Oil and Gas Properties of such Participating Partnerships and (A) deliver such Mortgages or other Security Instruments or documents as required under Section 8.13(f) of the Second Lien Credit Agreement and (B) execute a novation, amendment or agreement to reflect that the MGP Volumes shall no longer be secured by the Designated Partnership Hedge Facility; (the actions described in clauses (i) through (vii) above being referred to herein as the “Second Lien Permitted Actions”). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole right of the Second Lien Administrative Agent and the other Second Lien Secured Parties with respect to the ~~Pari Passu~~ Collateral shall be to receive the proceeds of the Collateral, if any, remaining after the Discharge of First Lien Obligations ~~may commence or maintain any Enforcement Action~~ has occurred and in accordance with the Second Lien Loan Documents and applicable law. (b) In exercising rights and remedies with respect to the ~~Shared~~ Collateral~~; provided~~, ~~however~~the First Lien Administrative Agent and the other First Lien Secured Parties may enforce the provisions of the First Lien Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The First Lien Administrative Agent agrees to provide at least five days’ prior written notice to the Second Lien Administrative Agent of its intention to foreclose upon or Dispose of any Collateral. (c) The Second Lien Administrative Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that (i) no covenant, agreement or restriction contained in any Second Lien Security Instrument or any other Second Lien Loan Document shall be deemed to restrict in any way the rights and remedies of the First Lien Administrative Agent or the other First Lien Secured Parties with respect to the Collateral ~~Agent~~ as set forth in this Agreement and the other First Lien Loan Documents and (ii) the rights of any First Lien Secured Party to enforce any provision of this Agreement or any First Lien Loan Document will not be prejudiced or impaired by (A) any act or failure to act of any Grantor, any other First Lien Secured Party or the First Lien Administrative Agent, or (B) noncompliance by any Person other than such First Lien Secured Party with any provision of this Agreement, any First Lien Loan Document or any Second Lien Loan Document. (d) Notwithstanding anything in this Agreement to the contrary, following the earliest to occur of (i) the acceleration of the ~~Pari Passu~~ Indebtedness then outstanding under the First Lien ~~Obligations with~~ Credit Agreement, (ii) a payment default under the ~~largest outstanding aggregate principal amount~~ First Lien Credit Agreement that has not been cured within sixty (60) days of the occurrence thereof or (iii) the commencement of an Insolvency Proceeding, the Second Lien Secured Parties may, at their sole expense and effort, upon notice within thirty (30) days following such ~~time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the~~ acceleration, passage of ~~at least 120 days after~~ time following a payment default without cure or the ~~earlier~~ commencement of an Insolvency Proceeding, as the case may be, to the First Lien Administrative Agent and the Borrower, require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties, without warranty or representation or recourse (except for representations and warranties required to be made by assigning lenders pursuant to the Assignment and Assumption (as such term is defined in the First Lien Credit Agreement)), all (but not less than all) of the First Lien Obligations; provided that (x) ~~the date on which the Controlling Pari Passu Agent declared the existence~~ such assignment shall not conflict with any law, rule or regulation or order of ~~an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations~~ any court or other Governmental Authority having jurisdiction, and (y) the ~~date on~~ Second Lien Secured Parties shall have paid to the First Lien Administrative Agent, for the account of the First Lien Secured Parties, in immediately available funds, an amount equal to 100% of the principal of the First Lien Obligations plus all accrued and unpaid interest thereon plus all accrued and unpaid fees and expenses plus all the other First Lien Obligations then outstanding (which shall include, with respect to (i) the ~~Revolving Collateral Agent received notice from~~ aggregate face amount of the ~~Controlling Pari Passu Agent~~ letters of ~~such declaration of~~ credit outstanding under the First Lien Credit Agreement, an ~~Event of Default (the “Revolver Standstill Period”)~~ amount in cash equal to 105% thereof, and (ii) ~~the Collateral Agent~~ Lender Swap Agreements that constitute First Lien Obligations, 105% of the ~~Pari Passu~~ aggregate Credit Exposure). In order to effectuate the foregoing, the First Lien Administrative Agent shall calculate, upon the written request of the Second Lien Administrative Agent from time to time, the amount in cash that would be necessary so to purchase the First Lien Obligations. Each First Lien Secured Party will retain all rights to indemnification provided by the Borrower in the relevant First Lien Loan Documents for all claims and other amounts relating to periods prior to the purchase of the First Lien Obligations pursuant to this Section 3.01. For the avoidance of doubt, the Second Lien Administrative Agent (on behalf of itself and the other Second Lien Secured Parties) hereby acknowledges and agrees that (A) the obligations of the First Lien Secured Parties to sell their respective First Lien Obligations under this Section 3.01(d) are several and not joint and several, (B) to the extent any First Lien Secured Party breaches its obligation to sell its First Lien Obligations under this Section 3.01(d) (a “Defaulting First Lien Secured Party”), nothing in this Section 3.01(d) shall be deemed to require the First Lien Administrative Agent or any other First Lien Secured Party to purchase such Defaulting First Lien Secured Party’s First Lien Obligations for resale to the Second Lien Secured Parties and (C) in all cases, the First Lien Administrative Agent and each First Lien Secured Party complying with the ~~second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”~~terms of this Section 3.01(d) ~~may commence an Enforcement Action after the passage~~ shall not be deemed to be in default of ~~at least 150 days after the earlier~~ this Agreement or otherwise be deemed liable for any action or inaction of any Defaulting First Lien Secured Party; provided that nothing in this last sentence of this Section 3.01(d) shall (x) require the ~~date on which~~ Second Lien Secured Parties to purchase less than all of the ~~Non-Controlling Pari Passu Agent declared~~ First Lien Obligations or (y) prohibit the ~~existence~~ Second Lien Secured Parties from purchasing less than all of the First Lien Obligations if a First Lien Secured Party becomes a Defaulting First Lien Secured Party. (e) Notwithstanding anything in this Agreement to the contrary, following the earliest to occur of (i) the acceleration of the Indebtedness then outstanding under the First Lien Credit Agreement, (ii) a payment default under the First Lien Credit Agreement that has not been cured within sixty (60) days of the occurrence thereof or (iii) the commencement of an ~~Event~~ Insolvency Proceeding, the First Lien Secured Parties may, at their sole expense and effort, upon notice within thirty (30) days following such acceleration, passage of ~~Default~~ time following a payment default without cure or the commencement of an Insolvency Proceeding, as the case may be, to the Second Lien Administrative Agent and ~~demanded~~ the ~~repayment~~ Borrower, require the Second Lien Secured Parties to transfer and assign to the First Lien Secured Parties, without warranty or representation or recourse (except for representations and warranties required to be made by assigning lenders pursuant to the Assignment and Assumption (as such term is defined in the Second Lien Credit Agreement)), all (but not less than all) of ~~all~~ the ~~principal amount~~ Second Lien Obligations; provided that (x) such assignment shall not conflict with any law, rule or regulation or order of ~~such Pari Passu Lien Obligations~~ any court or other Governmental Authority having jurisdiction, and (y) the ~~date on which~~ First Lien Secured Parties shall have paid to the ~~Revolving Collateral Agent and~~ Second Lien Administrative Agent, for the ~~Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration~~ account of the ~~Revolver Standstill Period~~Second Lien Secured Parties, if in immediately available funds, an amount equal to 100% of the ~~Revolving Collateral Agent or any other Collateral Agent on behalf~~ principal of ~~any Additional Priority Payment~~ the Second Lien Obligations ~~commences an Enforcement Action, neither~~ plus all accrued and unpaid interest thereon plus all accrued and unpaid fees and expenses plus all the ~~Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any~~ other ~~Collateral Agent of any Pari Passu~~ Second Lien Obligations then outstanding (which shall ~~commence or continue~~ include a premium in an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect amount equal to the ~~Shared Collateral~~Prepayment Fee as set forth in Section 3.04(d) of the Second Lien Credit Agreement). ~~Notwithstanding~~ In order to effectuate the foregoing, the Second Lien Administrative Agent shall calculate, upon the written request of the First Lien Administrative Agent from time to time, the amount in cash that would be necessary so to purchase the Second Lien Obligations. Each Second Lien Secured Party will retain all rights to indemnification provided by the Borrower in the relevant Second Lien Loan Documents for all claims and other amounts relating to periods prior to the purchase of the Second Lien Obligations pursuant to this Section 3.01. For the avoidance of doubt, the First Lien Administrative Agent (~~a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree,~~ on behalf of itself and the other First Lien Secured Parties) hereby acknowledges and agrees that (A) the obligations of the Second Lien Secured Parties to sell their respective Second Lien Obligations under this Section 3.01(e) are several and not joint and several, (B) to the extent any Second Lien Secured Party breaches its ~~related secured parties~~obligation to sell its Second Lien Obligations under this Section 3.01(e) (a “Defaulting Second Lien Secured Party”), ~~that~~ nothing in this Section 3.01(e) shall be deemed to require the Second Lien Administrative Agent or any other Second Lien Secured Party to purchase such Defaulting Second Lien Secured Party’s Second Lien Obligations for resale to the First Lien Secured Parties and (C) in all cases, the Second Lien Administrative Agent and ~~its Related~~ each Second Lien Secured Party complying with the terms of this Section 3.01(e) shall not be deemed to be in default of this Agreement or otherwise be deemed liable for any action or inaction of any Defaulting Second Lien Secured Party; provided that nothing in this last sentence of this Section 3.01(e) shall (x) require the First Lien Secured Parties to purchase less than all of the Second Lien Obligations or (y) prohibit the First Lien Secured Parties from purchasing less than all of the Second Lien Obligations if a Second Lien Secured Party becomes a Defaulting Second Lien Secured Party. (f) In furtherance of the foregoing Sections 3.01(d) and 3.01(e), the First Lien Administrative Agent shall ~~cooperate in a commercially reasonable manner with each other agent~~ endeavor to deliver notice to the Second Lien Administrative Agent of any payment default under the First Lien Credit Agreement; provided that the First Lien Administrative Agent’s failure to give such notice under this Section 3.01(f) shall not create any claim or ~~trustee and its related secured parties in~~ cause of action on the part of any ~~enforcement of rights or~~ Second Lien Secured Party against the First Lien Administrative Agent for any ~~exercise of remedies with respect to any Shared Collateral~~reason whatsoever.

Appears in 1 contract

Samples: Credit Agreement (Atlas Resource Partners, L.P.)

Exercise of Rights and Remedies. ~~At any time prior~~ (a) Subject to subsection (b) below, so long as the Discharge of ~~Priority Payment~~ First Lien Obligations ~~and~~ has not occurred, whether or not an any Insolvency or Liquidation Proceeding has ~~commenced by or against~~ been commenced, the ~~Borrower or any of~~ First Lien Agents and, subject to the ~~Pulitzer Entities that own Shared Collateral~~First Lien Intercreditor Agreement, ~~(A)~~ the ~~Revolving Collateral Agent and any Additional Agent on behalf of any Additional Priority Payment~~ other First Lien ~~Obligations~~ Secured Parties, shall have the exclusive right to take, commence or seek to commence and maintain or seek to maintain any Collateral Enforcement Action and may do so, in each case, without any consultation with or the consent of any Second Lien Collateral Agent or any other Second Lien Secured Party. (b) Except for the Second Lien Permitted Actions, which for the avoidance of doubt shall be allowed to be taken by any Second Lien Collateral Agent, acting on the instructions of the Applicable Second Lien Representative, unless and until the Discharge of First Lien Obligations has occurred, the Second Lien Collateral Agents and the other Second Lien Secured Parties will not (i) commence (or file with any court documents that seek to commence) or maintain or seek to maintain any Collateral Enforcement Action or (ii) commence (or file with any court documents that seek to commence) or join with any Person (other than a First Lien Collateral Agent) in commencing, or petition or vote in favor of any resolution for, any action or proceeding with respect to any Collateral Enforcement Action with respect to the Shared Collateral without the written consent of the Applicable First Lien Representative; provided that any Second Lien Collateral Agent, acting on the instruction of the Applicable Second Lien Representative, may exercise any Collateral Enforcement Action (other than any remedies the exercise of which is otherwise prohibited by this Agreement) after a period of [180]8 consecutive days has elapsed from the later of (i) the date of delivery of written notice by the Applicable Second Lien Representative to each First Lien Agent, certifying that such Person is the Applicable Second Lien Representative, stating that a Second Lien Event of Default with respect to any Series of Second Lien Obligations has occurred and is continuing and that such Second Lien Obligations are currently due and payable in full (whether as a result of acceleration or otherwise) and stating its intention to exercise a Collateral Enforcement Action and (ii) the actual occurrence of a Second Lien Event of Default of such Series of Second Lien Obligations and such Second Lien Obligations under the applicable Second Lien Credit Documents being due and payable in full (the “Junior Standstill Period”), and then such Second Lien Collateral Agent and Second Lien Secured Parties may exercise any Collateral Enforcement Action only so long as (A) no First Lien Secured Party shall have commenced (or attempted to commence or given notice of its intent to commence) any Collateral Enforcement Action with respect to the Shared Collateral (including seeking relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) and is diligently pursuing the same, and such Second Lien Collateral Agent and/or Second Lien Secured Party has notice of such commencement or attempt to commence and (B) no Grantor which has granted a Lien on Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding. (c) Except as expressly set forth in this Agreement, each First Lien Agent and First Lien Secured Party and, without limiting and subject to Sections 3.01(b) and 3.02 and the other limitations on such action set forth herein, each Second Lien Collateral Agent and Second Lien Secured Party shall have any and all rights and remedies it may have as a creditor under applicable law, including the right to take Collateral Enforcement Action (except as may be separately otherwise agreed in writing by and between or among any applicable Parties, solely as among such Parties and the creditors represented thereby); provided that the exercise of Collateral Enforcement Action with respect to the Shared Collateral shall be subject to the Lien Priority and to the provisions of this Agreement. Each First Lien Agent and First Lien Secured Party may enforce the provisions of the applicable First Lien Credit Documents, each Second Lien Collateral Agent and Second Lien Secured Party may enforce the provisions of the applicable Second Lien Credit Documents, and each First Lien Agent, First Lien Secured Party, Second Lien Collateral Agent and Second Lien Secured Party may exercise Collateral Enforcement Action, all in such order and in such manner as each may determine in the exercise of its sole discretion, but in any case consistent with the terms of this Agreement, any other applicable intercreditor agreement and mandatory provisions of applicable law (except as may be separately otherwise agreed in writing by and between or among any applicable [8] NTD: This number may be such other number of days as Holdings, the Applicable First Lien Representative and the Initial Second Lien Representative may agree upon. Parties, solely as among such Parties and the Secured Parties represented thereby). Each First Lien Collateral Agent shall provide each Second Lien Collateral Agent and the Applicable Second Lien Representative reasonable prior notice of its initial material Collateral Enforcement Action. Each Second Lien Collateral Agent shall provide each First Lien Agent reasonable prior written notice of its initial material Collateral Enforcement Action. (d) Each Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Credit Document shall be deemed to restrict in any way the rights and remedies of the First Lien Agents or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Lien Credit Documents. (e) In connection with any Collateral Enforcement Action, each Secured Party and each Collateral Agent representing that Secured Party, solely as among themselves in such capacity and solely for their mutual benefit, hereby agree that (i) each First Lien Collateral Agent shall only take, direct or exercise any right or remedy with respect to the First Lien Collateral as set forth in the First Lien Intercreditor Agreement and (ii) each Second Lien Collateral Agent shall only take, direct or exercise any ~~Shared 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 and (B) none of the Secured Parties~~ with respect to the ~~Pari Passu~~ Second Lien ~~Obligations may commence or maintain any Enforcement Action with respect to~~ Collateral on the ~~Shared Collateral; provided, however, that (i) the Collateral Agent~~ instructions of the ~~Pari Passu~~ Applicable Second Lien Obligations with the largest outstanding aggregate principal amount at such time (the “Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 120 days after the earlier of (x) the date on which the Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent received notice from the Controlling Pari Passu Agent of such declaration of an Event of Default (the “Revolver Standstill Period”) and (ii) the Collateral Agent of the Pari Passu Lien Obligations with the second largest outstanding aggregate principal amount at such time (the “Non-Controlling Pari Passu Agent”) may commence an Enforcement Action after the passage of at least 150 days after the earlier of (x) the date on which the Non-Controlling Pari Passu Agent declared the existence of an Event of Default and demanded the repayment of all the principal amount of such Pari Passu Lien Obligations and (y) the date on which the Revolving Collateral Agent and the Controlling Pari Passu Agent received notice from the Non-Controlling Pari Passu Agent of such declaration of an Event of Default; provided, further, however, notwithstanding the expiration of the Revolver Standstill Period, if the Revolving Collateral Agent or any other Collateral Agent on behalf of any Additional Priority Payment Lien Obligations commences an Enforcement Action, neither the Controlling Pari Passu Agent, the Non-Controlling Pari Passu Agent or any other Collateral Agent of any Pari Passu Lien Obligations shall commence or continue an Enforcement Action. The Revolving Agent, the Revolving Collateral Agent and any other Collateral Agent behalf of any Additional Priority Payment Lien Obligations are under no obligation to consult with any Collateral Agent on behalf of any Pari Passu Lien Obligations in connection with an Enforcement Action with respect to the Shared Collateral. Notwithstanding the foregoing, (a) the Secured Parties shall remain subject to, and bound by, all covenants or agreements made in this Agreement, and (b) each Agent will agree, on behalf of itself and its related secured parties, that such Agent and its Related Secured Parties shall cooperate in a commercially reasonable manner with each other agent or trustee and its related secured parties in any enforcement of rights or any exercise of remedies with respect to any Shared CollateralRepresentative.

Appears in 1 contract

Samples: Indenture (Pactiv Evergreen Inc.)

Common use of Exercise of Rights and Remedies Clause in Contracts