Common use of Limitation on Enforcement Action; Prohibition on Contesting Liens Clause in Contracts

Limitation on Enforcement Action; Prohibition on Contesting Liens. Prior to the Discharge of First-Out Obligations, the Second-Out Agent, for itself and on behalf of each Second-Out Secured Party, hereby agrees that, subject to Section 3.05(b), none of the Second-Out Agent or any other Second-Out Secured Party shall commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral under any Second-Out Document, applicable law or otherwise (including but not limited to any right of setoff or under the Second Lien Intercreditor Agreement), it being agreed that only the First-Out Agent, acting in accordance with the applicable First-Out Documents, shall have the exclusive right (and whether or not any Insolvency or Liquidation Proceeding has been commenced), to take any such actions or exercise any such remedies, in each case, without any consultation with or the consent of the Second-Out Agent or any other Second-Out Secured Party. In exercising rights and remedies with respect to the Shared Collateral, the First-Out Agent and the other First-Out Secured Parties may enforce the provisions of the First-Out Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion and regardless of whether such exercise and enforcement is adverse to the interest of any Second-Out Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Shared Collateral upon foreclosure, to incur expenses in connection with any such Disposition or in connection with care or preservation of the Shared Collateral and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code (including the right to credit bid) or any other applicable or Bankruptcy Law. Without limiting the generality of the foregoing, the First-Out Agent will have the exclusive right to deal with that portion of the Shared Collateral consisting of deposit accounts and securities accounts (collectively “Accounts”), including exercising rights under control agreements with respect to such Accounts. The Second-Out Agent, for itself and on behalf of the other Second-Out Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second-Out Security Document, or any other Second-Out Document shall be deemed to restrict in any way the rights and remedies of the First-Out Agent or the other First-Out Secured Parties with respect to the Shared Collateral as set forth in this Agreement. Notwithstanding the foregoing, subject to Section 3.05, the Second-Out Agent, on behalf of the Second-Out Secured Parties, may, but will have no obligation to, take all such actions (not adverse to the First-Out Liens or the rights of the First-Out Agent and the First-Out Secured Parties) it deems necessary to perfect or continue the perfection of the Second-Out Liens in the Shared Collateral or to create, preserve or protect (but not enforce) the Second-Out Liens in the Shared Collateral. Notwithstanding the foregoing, nothing herein shall limit the right or ability of the Second-Out Secured Parties to (a) purchase (by credit bid or otherwise) all or any portion of the Shared Collateral in connection with any enforcement of remedies by the First-Out Agent to the extent that, and so long as, the Discharge of First-Out Obligations occurs immediately after giving effect thereto, (b) file a proof of claim with respect to the Second-Out Obligations, (c) take any action in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, or (d) 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-Out Secured Parties or the avoidance of any Lien securing such Second-Out Obligations.

Limitation on Enforcement Action; Prohibition on Contesting Liens. Prior to the Discharge of First-Out Revolver Obligations, the Second-Out Term Loan Agent, for itself and on behalf of each Second-Out Term Loan Secured Party, hereby agrees that, subject to Section 3.05(b5.02 and Section 5.05(b), none of the Second-Out Term Loan Agent or any other Second-Out Term Loan Secured Party shall commence or instruct the Collateral Trustee to commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral under any Second-Out Term Loan Document, applicable law or otherwise (including but not limited to any right of setoff or under the Second Lien Intercreditor Agreement), it being agreed that only the First-Out Collateral Trustee, at the direction of the Revolver Agent, and acting in accordance with the applicable First-Out Revolver Documents, shall have the exclusive right (and whether or not any Insolvency or Liquidation Proceeding has been commenced), to take any such actions or exercise any such remedies, in each case, without any consultation with or the consent of the Second-Out Term Loan Agent or any other Second-Out Term Loan Secured Party. In exercising rights and remedies with respect to the Shared Collateral, the First-Out Collateral Trustee, at the direction of the Revolver Agent and the other First-Out Revolver Secured Parties may enforce the provisions of the First-Out Revolver Documents and exercise remedies thereunder, all in such order and in such manner as they the Revolver Agent and the other Revolver Secured Parties may determine in their sole discretion and regardless of whether such exercise and enforcement is adverse to the interest of any Second-Out Term Loan Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Shared Collateral upon foreclosure, to incur expenses in connection with any such Disposition or in connection with care or preservation of the Shared Collateral and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code (including the right to credit bid) or any other applicable law or Bankruptcy Law. Without limiting the generality of the foregoing, the First-Out Agent Collateral Trustee, at the direction of the Revolver Agent, will have the exclusive right to deal with that portion of the Shared Collateral consisting of deposit accounts and securities accounts (collectively “Accounts”), including exercising rights under control agreements with respect to such Accounts. The Second-Out Term Loan Agent, for itself and on behalf of the other Second-Out Term Loan Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second-Out Term Loan Security Document, or any other Second-Out Term Loan Document shall be deemed to restrict in any way the rights and remedies of the First-Out Collateral Trustee on behalf of the Revolver Agent or the other First-Out Revolver Secured Parties with respect to the Shared Collateral as set forth in this Agreement. Notwithstanding the foregoing, subject to Section 3.055.05, the Second-Out Term Loan Agent, on behalf of the Second-Out Term Loan Secured Parties, may, but will have no obligation to, direct the Collateral Trustee to take all such actions (not adverse to the First-Out Revolver Liens or the rights of the First-Out Revolver Agent and the First-Out Revolver Secured Parties) it deems necessary to perfect or continue the perfection of the Second-Out Term Loan Liens in the Shared Collateral or to create, preserve or protect (but not enforce) the Second-Out Term Loan Liens in the Shared Collateral. Notwithstanding the foregoing, nothing herein shall limit the right or ability of the Second-Out Term Loan Secured Parties to (a) purchase (by credit bid or otherwise) all or any portion of the Shared Collateral in connection with any enforcement of remedies by the First-Out Collateral Trustee at the direction of the Revolver Agent to the extent that, and so long as, the Discharge of First-Out Revolver Obligations occurs immediately after giving effect thereto, (b) direct the Collateral Trustee to file a proof of claim with respect to the Second-Out Term Loan Obligations, (c) direct the Collateral Trustee to take any action in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, or (d) direct the Collateral Trustee to 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-Out Term Loan Secured Parties or the avoidance of any Lien securing such Second-Out Term Loan Obligations. The Revolving Agent agrees to notify the Term Agent of any direction given by it to the Collateral Trustee to commence any Enforcement Action in respect of the Shared Collateral; provided, that failure to give such notice shall not impair the effectiveness of such Enforcement Action, nor create any claim or cause of action against the Revolving Agent or any Revolving Secured Party.

Limitation on Enforcement Action; Prohibition on Contesting Liens. Prior to the Discharge of First-Out Obligations, the Second-Out Agent, for itself and on behalf of each Second-Out Secured Party, hereby agrees that, subject to Section 3.05(b), none of the Second-Out Agent or any other Second-Out Secured Party shall commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official 19560366.30 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 interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral under any Second-Out Document, applicable law or otherwise (including but not limited to any right of setoff or under the Second Lien Intercreditor Agreement), it being agreed that only the First-Out Agent, acting in accordance with the applicable First-Out Documents, shall have the exclusive right (and whether or not any Insolvency or Liquidation Proceeding has been commenced), to take any such actions or exercise any such remedies, in each case, without any consultation with or the consent of the Second-Out Agent or any other Second-Out Secured Party. In exercising rights and remedies with respect to the Shared Collateral, the First-Out Agent and the other First-Out Secured Parties may enforce the provisions of the First-Out Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion and regardless of whether such exercise and enforcement is adverse to the interest of any Second-Out Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Shared Collateral upon foreclosure, to incur expenses in connection with any such Disposition or in connection with care or preservation of the Shared Collateral and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code (including the right to credit bid) or any other applicable or Bankruptcy Law. Without limiting the generality of the foregoing, the First-Out Agent will have the exclusive right to deal with that portion of the Shared Collateral consisting of deposit accounts and securities accounts (collectively “Accounts”), including exercising rights under control agreements with respect to such Accounts. The Second-Out Agent, for itself and on behalf of the other Second-Out Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second-Out Security Document, or any other Second-Out Document shall be deemed to restrict in any way the rights and remedies of the First-Out Agent or the other First-Out Secured Parties with respect to the Shared Collateral as set forth in this Agreement. Notwithstanding the foregoing, subject to Section 3.05, the Second-Out Agent, on behalf of the Second-Out Secured Parties, may, but will have no obligation to, take all such actions (not adverse to the First-Out Liens or the rights of the First-Out Agent and the First-Out Secured Parties) it deems necessary to perfect or continue the perfection of the Second-Out Liens in the Shared Collateral or to create, preserve or protect (but not enforce) the Second-Out Liens in the Shared Collateral. Notwithstanding the foregoing, nothing herein shall limit the right or ability of the Second-Out Secured Parties to (a) purchase (by credit bid or otherwise) all or any portion of the Shared Collateral in connection with any enforcement of remedies by the First-Out Agent to the extent that, and so long as, the Discharge of First-Out Obligations occurs immediately after giving effect thereto, (b) file a proof of claim with respect to the Second-Out Obligations, (c) take any action in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, or (d) 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-Out Secured Parties or the avoidance of any Lien securing such Second-Out Obligations.

Limitation on Enforcement Action; Prohibition on Contesting Liens. Prior to the Discharge of First-Out Revolver Obligations, the Second-Out each FLLO Agent, for itself and on behalf of each Second-Out applicable FLLO Secured Party, hereby agrees that, subject to Section 3.05(b5.02 and Section 5.05(b), none of the Second-Out FLLO Agent or any other Second-Out FLLO Secured Party shall commence or instruct the Collateral Trustee to commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral under any Second-Out FLLO Document, applicable law or otherwise (including but not limited to any right of setoff or under the Second Lien Intercreditor Agreement), it being agreed that only the First-Out Collateral Trustee, at the direction of the Revolver Agent, and acting in accordance with the applicable First-Out Revolver Documents, shall have the exclusive right (and whether or not any Insolvency or Liquidation Proceeding has been commenced), to take any such actions or exercise any such remedies, in each case, without any consultation with or the consent of the Second-Out Agent FLLO Agents or any other Second-Out FLLO Secured Party. In exercising rights and remedies with respect to the Shared Collateral, the First-Out Collateral Trustee, at the direction of the Revolver Agent and the other First-Out Revolver Secured Parties may enforce the provisions of the First-Out Revolver Documents and exercise remedies thereunder, all in such order and in such manner as they the Revolver Agent and the other Revolver Secured Parties may determine in their sole discretion and regardless of whether such exercise and enforcement is adverse to the interest of any Second-Out FLLO Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Shared Collateral upon foreclosure, to incur expenses in connection with any such Disposition or in connection with care or preservation of the Shared Collateral and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code (including the right to credit bid) or any other applicable law or Bankruptcy Law. Without limiting the generality of the foregoing, the First-Out Agent Collateral Trustee, at the direction of the Revolver Agent, will have the exclusive right to deal with that portion of the Shared Collateral consisting of deposit accounts and securities accounts (collectively “Accounts”), including exercising rights under control agreements with respect to such Accounts. The Second-Out Each FLLO Agent, for itself and on behalf of the other Second-Out FLLO Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second-Out FLLO Security Document, or any other Second-Out FLLO Document shall be deemed to restrict in any way the rights and remedies of the First-Out Collateral Trustee on behalf of the Revolver Agent or the other First-Out Revolver Secured Parties with respect to the Shared Collateral as set forth in this Agreement. Notwithstanding the foregoing, subject to Section 3.055.05, the Second-Out Controlling FLLO Agent, on behalf of the Second-Out FLLO Secured Parties, may, but will have no obligation to, and, if the Controlling FLLO Agent is the Original Term Loan Agent, acting at the written direction of the Required Term Loan Lenders, shall, direct the Collateral Trustee to take all such actions (not adverse to the First-Out Revolver Liens or the rights of the First-Out Revolver Agent and the First-Out Revolver Secured Parties) it deems necessary to perfect or continue the perfection of the Second-Out FLLO Liens in the Shared Collateral or to create, preserve or protect (but not enforce) the Second-Out FLLO Liens in the Shared Collateral. Notwithstanding the foregoing, nothing herein shall limit the right or ability of the Second-Out FLLO Secured Parties to (a) purchase (by credit bid or otherwise) all or any portion of the Shared Collateral in connection with any enforcement of remedies by the First-Out Collateral Trustee at the direction of the Revolver Agent to the extent that, and so long as, the Discharge of First-Out Revolver Obligations occurs immediately after giving effect thereto, (b) direct the Collateral Trustee to file a proof of claim with respect to the Second-Out FLLO Obligations, (c) direct the Collateral Trustee to take any action in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, or (d) direct the Collateral Trustee to 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-Out FLLO Secured Parties or the avoidance of any Lien securing such Second-Out FLLO Obligations. The Revolver Agent agrees to notify the FLLO Agents of any direction given by it to the Collateral Trustee to commence any Enforcement Action in respect of the Shared Collateral; provided, that failure to give such notice shall not impair the effectiveness of such Enforcement Action, nor create any claim or cause of action against the Revolver Agent or any Revolver Secured Party.