No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, may have or be otherwise charged with. (b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien Claimholder, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following: (1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; (2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof; (3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and (4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof. (c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to: (1) the First Lien Loan Documents (other than this Agreement); (2) the collection of the First Lien Obligations; or (3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise. (d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 2 contracts
Samples: Omnibus Amendment to Transaction Documents (Karyopharm Therapeutics Inc.), Indenture (Karyopharm Therapeutics Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them Senior Secured Party to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Loan Party or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSenior Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Documents or any of the Second Lien Junior Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Senior Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph clause (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)a) (except as set forth in any Financing Document), the First Lien Claimholderseach Senior Secured Party, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderJunior Secured Party, without incurring any liabilities liability to the Second Lien Collateral Agents or any other Second Lien Claimholder Junior Secured Party and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder Junior Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations or Senior Claim, any Lien on in respect of any First Lien Collateral or Senior Collateral, any guaranty of any of the First Lien Obligations Senior Claim, or any liability of the Company or any other Grantor, or any liability Loan Party incurred directly or indirectly in respect thereof of any of the foregoing (including any increase in or extension of the First Lien ObligationsSenior Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner the Senior Claims, any Liens held by the First Lien Collateral Agent Senior Agent, the Senior Secured Parties, or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Senior Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Collateral or any liability of any Loan Party to the Company Senior Agent or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSenior Secured Party, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Claim or any other liability of the Company or any other Grantor Loan Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsSenior Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any Loan Party or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyLoan Parties, any other Grantor or any First Lien the Senior Collateral and any security and security, any guarantor or any liability of the Company or any other Grantor Loan Party to the First Lien Claimholders any Senior Secured Party, or any liability incurred directly or indirectly indirectly, in respect thereofof the foregoing.
(c) Except as otherwise expressly provided hereinThe Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, also agrees that the First Lien Claimholders and the First Lien Collateral Agent no Senior Secured Party shall not have any duty or liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersJunior Secured Party, and the Second Lien Collateral AgentsJunior Agent, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral Agent each Senior Secured Party arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent any Senior Secured Party may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Claims, (3iii) the foreclosure upon, or sale, liquidation or other disposition of, the Senior Collateral, (iv) the release of any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of any Senior Collateral, or (v) the maintenance or preservation of the First Lien Senior Collateral, the First Lien Obligations Senior Claims or otherwise.
(d) Until the Discharge of First Lien ObligationsThe Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, agree in respect of any Collateral agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable lawlaw in respect of such Collateral.
Appears in 2 contracts
Samples: Intercreditor and Collateral Agency Agreement (Revlon Consumer Products Corp), Intercreditor and Collateral Agency Agreement (Revlon Consumer Products Corp)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the Control Agent, the First Lien Collateral Administrative Agent or any of them to enforce any provision of this Agreement or Agreement, any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by the Control Agent, any First Lien Claimholder or the First Lien Collateral Administrative Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any CHARl\1175377v2 knowledge thereof which the First Lien Collateral Agent or Control Agent, any First Lien Claimholder, any First Lien Administrative Agent, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.3(bT)), . the First Lien Claimholders, the First Lien Collateral Administrative Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Administrative Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Administrative Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Administrative Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing (subject, in each case, to the limits set forth in the definition of “First Lien Obligations” and Section 5.3);
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension, subject to the limits set forth in the definition of “First Lien Obligations”) or or, subject to the provisions of this Agreement, otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Administrative Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;; provided, however, the foregoing shall not prohibit the Second Lien Administrative Agent and Second Lien Claimholders from enforcing, consistent with the other terms of this Agreement, any right arising under the Second Lien Credit Agreement as a result of any Grantor’s violation of the terms thereof.
(2iii) subject to the provisions of this Agreement, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Administrative Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien CHARl\1175377v2 34 Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof;
(vi) take or fail to take any Lien securing the First Lien Obligations or any other collateral security for any First Lien Obligations or take or fail to take any action which may be necessary or appropriate to ensure that any Lien securing First Lien Obligations or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any property subject to any Lien are applied to the payment of any First Lien Obligation or any Obligation secured thereby; or
(vii) otherwise release, discharge or permit the lapse of any or all Liens securing the First Lien Obligations or any other Liens upon any property at any time securing any First Lien Obligations.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the Control Agent, the First Lien Claimholders and the First Lien Collateral Administrative Agent shall not have any no liability to the Second Lien Collateral Agents Administrative Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim all claims against the Control Agent, any First Lien Claimholder or the First Lien Collateral Agent Administrative Agent, arising out of any and all actions which the Control Agent, the First Lien Claimholders or the First Lien Collateral Administrative Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral (including, without limitation, the Control Collateral, as applicable). The Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Administrative Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien ObligationsSubject to Section 5.4, the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Amn Healthcare Services Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholdersany Revolving Secured Parties, the First Lien Revolving Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Revolving Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Revolving Secured Party or the First Lien Revolving Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Revolving Documents or any of the Second Lien Term Documents, regardless of any knowledge thereof which the First Lien Revolving Collateral Agent or any First Lien ClaimholderRevolving Secured Parties, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Revolving Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholdersany Revolving Secured Parties, the First Lien Revolving Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan applicable Revolving Documents and/or applicable law, without the consent of, or notice to, the Second Lien Term Collateral Agents Agent or any other Second Lien ClaimholderTerm Secured Parties, without incurring any liabilities to the Second Lien Term Collateral Agents Agent or any other Second Lien Claimholder Term Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Term Collateral Agents Agent or any other Second Lien Claimholder Term Secured Parties is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Revolving Obligations or any Revolving Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien applicable Revolving Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Revolving Liens held by the First Lien Revolving Collateral Agent or any of the other First Lien Claimholderssuch Revolving Secured Parties, the First Lien applicable Revolving Obligations or any of the First Lien Loan applicable Revolving Documents; provided that any such increase in such Revolving Obligations shall not increase the sum of the Indebtedness constituting principal under the Revolving Credit Agreement and the face amount of any letters of credit issued under the Revolving Credit Agreement to an amount in excess of the Revolving Credit Cap Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First ABL Collateral subject to its Revolving Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders such Revolving Secured Parties or the First Lien Revolving Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Revolving Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien applicable Revolving Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First ABL Collateral subject to its Revolving Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders applicable Revolving Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Term Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Secured Parties, also agrees that the First Lien Claimholders Revolving Secured Parties and the First Lien Revolving Collateral Agent shall not have any no liability to the Second Lien Term Collateral Agents Agent or any such Second Lien ClaimholdersTerm Secured Parties, and the Second Lien Term Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Secured Parties, hereby waives any claim against any First Lien Claimholder Revolving Secured Party or the First Lien Revolving Collateral Agent arising out of any and all actions which the First Lien Claimholders such Revolving Secured Parties or the First Lien Revolving Collateral Agent may take or permit or omit to take with respect to:
(1i) the First Lien Loan Revolving Documents (other than as provided in this Agreement);
(2ii) the collection of the First Lien Revolving Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien CollateralABL Collateral subject to the Revolving Liens. The Second Lien Term Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Secured Parties, agree agrees that the First Lien Claimholders Revolving Secured Parties and the First Lien Revolving Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of any Collateral subject to the First Lien CollateralRevolving Liens, the First Lien Revolving Obligations or otherwise.
(d) Until the Discharge of First Lien Revolving Obligations, the Second Lien Term Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any ABL Collateral subject to any Revolving Lien or any other similar rights a junior secured creditor may have under applicable law.
Appears in 2 contracts
Samples: Intercreditor Agreement (Spectrum Brands, Inc.), Intercreditor Agreement (Spectrum Brands, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien Working Capital Agent and the Working Capital Claimholders, the First Lien Collateral Term Loan Agent and the Term Loan Claimholders, any Additional Agent and any Additional Claimholders, the Control Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document their respective Credit Documents shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agentsuch party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien their respective Credit Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, such party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)applicable Credit Documents), the First Lien Working Capital Agent and the Working Capital Claimholders, the First Lien Collateral Term Loan Agent and the Term Loan Claimholders, and any Additional Agent and any Additional Claimholders and any of them may, at any time and from time to time in accordance with the First Lien Loan their respective Credit Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien Claimholder, Claimholders and without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing (subject, in each case, to any limitations expressly set forth in this Agreement);
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien their respective Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien their respective Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension, subject to any limitations expressly set forth in this Agreement) or or, subject to the provisions of this Agreement, otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral such Agent or any of the other First Lien such Claimholders, the First Lien their respective Obligations or any of their respective Credit Documents; provided, however, the First Lien Loan Documentsforegoing shall not prohibit any other Agent and any other Claimholders from enforcing, consistent with the other terms of this Agreement, any right arising under their respective Credit Agreement or other Credit Documents as a result of any Grantor’s violation of the terms hereof;
(2iii) subject to the provisions of this Agreement, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien such Claimholders or the First Lien Collateral such Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise their respective Obligations or any First Lien Obligation portion thereof or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien their respective Obligations) in any manner or order; and;
(4v) subject to the restrictions set forth in this Agreement, exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien such Claimholders or any liability incurred directly or indirectly in respect thereof;
(vi) take or fail to take any Lien securing their respective Obligations or any other collateral security for such Obligations or take or fail to take any action which may be necessary or appropriate to ensure that any Lien securing such Obligations or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien, provided that Liens taken in violation of Section 2.5 shall be subject to the provisions of Section 2.5; or
(vii) otherwise release, discharge or permit the lapse of any or all Liens securing their respective Obligations or any other Liens upon any property at any time securing any such Obligations.
(c) Except as otherwise expressly provided hereinEach Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Claimholders for which it acts as Agent, also agrees that the First Lien no Priority Agent or Priority Claimholders and the First Lien Collateral Agent shall not have any liability to such Agent or the Second Lien Collateral Agents or any such Second Lien ClaimholdersClaimholders for which it acts as Agent, and the Second Lien Collateral Agents, each such Agent on behalf of itself and each other applicable Second Lien Claimholderthe Claimholders for which it acts as Agent, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral Priority Agent and any Priority Claimholders, arising out of any and all actions which the First Lien such Priority Agent or such Priority Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien to their Priority Collateral. The Second Lien Collateral AgentsEach Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Claimholders for which it acts as Agent, agree agrees that the First Lien no Priority Agent or Priority Claimholders and the First Lien Collateral Agent do not shall have any duty to them in respect of the maintenance or preservation of the First Lien any Priority Agent’s Priority Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien ObligationsEach Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Claimholders for which it acts as Agent, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral that does not constitute its Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 2 contracts
Samples: Credit Agreement (Nci Building Systems Inc), Intercreditor Agreement (Nci Building Systems Inc)
No Waiver of Lien Priorities. (a) No right of the Agents, the other ABL Claimholders or the other First Lien Claimholders, the First Lien Collateral Agent or any of them Claimholders to enforce any provision of this Agreement or any ABL Loan Document or First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any such Agents, ABL Claimholders or First Lien Claimholder or the First Lien Collateral Agent, Claimholders or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien ABL Loan Documents or any of the Second First Lien Documents, regardless of any knowledge thereof which the Agents or the ABL Claimholders or First Lien Collateral Agent or any First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the ABL Loan Documents and First Lien Loan Documents and subject to the provisions of Section Sections 5.3(a), 5.3(c), and, as applicable, 5.3(d)), the Agents, the other ABL Claimholders and the other First Lien Claimholders, the First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the ABL Loan Documents and First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second other Agent or the ABL Claimholder or the First Lien Collateral Agents or any other Second Lien ClaimholderClaimholders (as applicable), without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder such Persons and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Agents or any rights or remedies under any of the other First Lien Claimholders, ABL Loan Documents or the First Lien Obligations or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral (except to the extent provided in this Agreement) or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderorder that is not inconsistent with the terms of this Agreement; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereofGrantor.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 2 contracts
Samples: Credit Agreement (Campbell Alliance Group Inc), Indenture (Campbell Alliance Group Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent Representatives or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral AgentRepresentative, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the that any other First Lien Collateral Agent Representative or any First Lien ClaimholderSecured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent Representatives and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the any Second Lien Collateral Agents Representative or any other Second Lien Claimholder, Secured Party and without incurring any liabilities to the any Second Lien Collateral Agents Representative or any other Second Lien Claimholder Secured Party, and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents Representative or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) ), but in all events in accordance with the First Lien Documents and this Agreement and applicable law, do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, (if such increased Indebtedness is permitted to be incurred, secured and guaranteed on a senior basis by each applicable First Lien Document and Second Lien Document) increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Collateral Agent Representative or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents; provided, that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness constituting principal under the First Lien Documents and the face amount of any letters of credit issued under the First Lien Documents and not reimbursed to an amount in excess of the Cap Amount;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, Representatives or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each Second Lien Collateral AgentsRepresentative, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent Representatives shall not have any no liability to the such Second Lien Collateral Agents Representative or any such Second Lien ClaimholdersSecured Parties, and the such Second Lien Collateral AgentsRepresentative, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, hereby waives any claim against any First Lien Claimholder Secured Party or the any First Lien Collateral Agent Representative arising out of any and all actions which the First Lien Claimholders Secured Parties or the any First Lien Collateral Agent Representative may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the maintenance of, preservation of, foreclosure upon, or sale, liquidation or other disposition Disposition of, any First Lien Collateral. The Each Second Lien Collateral AgentsRepresentative, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not Representatives have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the each Second Lien Collateral AgentsRepresentative, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law, whether upon any foreclosure or other enforcement of the First Lien Collateral or the Second Lien Collateral or otherwise.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersCreditors, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Creditor or the First Lien Collateral Agent, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)5.3), the First Lien ClaimholdersCreditors, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Collateral Agent or any Second Lien Collateral Agents or any other Second Lien ClaimholderCreditors, without incurring any liabilities to the Collateral Agent or any Second Lien Collateral Agents or any other Second Lien Claimholder Creditors and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Collateral Agent or any Second Lien Collateral Agents or any other Second Lien Claimholder Creditors is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Collateral Agent:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersCreditors, the First Lien Obligations Obligations, or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Creditors or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Agent also agrees that the First Lien Claimholders Creditors and the First Lien Agent shall have no liability to Collateral Agent shall not have or any liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersCreditors, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Agent hereby waives any claim against any First Lien Claimholder Creditor or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Creditors or the First Lien Collateral Agent may take or may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Agent agrees that the First Lien Claimholders Creditors and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Obligations, or otherwise.
(d) Until the Discharge of First Lien Priority Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 2 contracts
Samples: Intercreditor Agreement (Interface Security Systems, L.L.C.), Intercreditor Agreement (Interface Security Systems Holdings Inc)
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersSenior Priority Agent, the First Lien Collateral Agent other Senior Priority Secured Parties, or any of them to enforce any provision of this Agreement or any First Lien Loan Senior Priority Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by the Senior Priority Agent or any First Lien Claimholder or the First Lien Collateral Agentother Senior Priority Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Priority Documents or any of the Second Lien Junior Priority Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Priority Agent or any First Lien Claimholderthe other Senior Priority Secured Parties, or any of them, may have or be otherwise charged with..
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First Lien Loan Senior Priority Documents and subject to the other provisions of Section 5.3(a)this Agreement), the First Lien ClaimholdersSenior Priority Agent, the First Lien Collateral Agent other Senior Priority Secured Parties, and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Senior Priority Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Junior Priority Agent or any other Second Lien ClaimholderJunior Priority Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Junior Priority Agent or any other Second Lien Claimholder Junior Priority Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Junior Priority Agent or any other Second Lien Claimholder Junior Priority Secured Party is affected, impaired or extinguished thereby) do any one or more of the following::
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2A) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof and applicable law) and in any order any part of the First Lien Senior Priority Collateral or any liability of the Company Borrower or any other Grantor to any of the First Lien Claimholders Senior Priority Agent or the First Lien Collateral Agentother Senior Priority Secured Parties, or any liability incurred directly or indirectly in respect thereof;;
(3B) settle or compromise any First Lien Senior Priority Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(4C) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First Lien Senior Priority Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First Lien Claimholders Senior Priority Secured Parties or any liability incurred directly or indirectly in respect thereof..
(ciii) Except as otherwise expressly provided hereinThe Junior Priority Agent, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderJunior Priority Secured Parties, also agrees that the First Lien Claimholders Senior Priority Agent and the First Lien Collateral Agent other Senior Priority Secured Parties shall not have any no liability to the Second Lien Collateral Agents Junior Priority Agent or any such Second Lien Claimholdersother Junior Priority Secured Party, and the Second Lien Collateral AgentsJunior Priority Agent, each on behalf of itself and each the other applicable Second Lien ClaimholderJunior Priority Secured Parties, hereby waives any claim against the Senior Priority Agent and any First Lien Claimholder or the First Lien Collateral Agent other Senior Priority Secured Party, arising out of any and all actions which the First Lien Claimholders Senior Priority Agent or the First Lien Collateral Agent other Senior Priority Secured Parties may take or permit or omit to take with respect to::
(1A) the First Lien Loan Senior Priority Documents (other than this Agreement);;
(2B) the collection of the First Lien ObligationsSenior Priority Obligations and the Excess ABL Debt, the Excess Senior Note Debt or the Excess Junior Note Debt, as applicable; or
(3C) the foreclosure upon, or sale, liquidation or other disposition Disposition of, any First Lien Collateral. Senior Priority Collateral in accordance with this Agreement and applicable law.
(iv) The Second Lien Collateral AgentsJunior Priority Agent, each on behalf of itself and each the other applicable Second Lien ClaimholderJunior Priority Secured Parties, agree agrees that the First Lien Claimholders Senior Priority Agent and the First Lien Collateral Agent do not other Senior Priority Secured Parties have any no duty to them the Junior Priority Agent or the other Junior Priority Secured Parties in respect of the maintenance or preservation of the First Lien Senior Priority Collateral, the First Lien Senior Priority Obligations or otherwise., except as otherwise provided in this Agreement.
(dv) Until the Discharge of First Lien ObligationsThe Junior Priority Agent, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderJunior Priority Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshaling, appraisal, valuation marshaling or other similar right that may otherwise be available under applicable law with respect to the Senior Priority Collateral or any other similar rights a junior secured creditor may have under applicable law..
Appears in 2 contracts
Samples: Indenture (Ferroglobe PLC), Indenture (Ferroglobe PLC)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersCollateral Agent, the First Lien Claimholders, the Collateral Agent Trustee or any of them the Second Lien Claimholders to enforce any provision of this Agreement or Agreement, the Collateral Trust Agreement, any First Lien Loan Document or any Second Lien Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, such Persons or by any noncompliance by any such Person with the terms, provisions and covenants of this Agreement, the Collateral Trust Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholdersuch Persons, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, Collateral Agent and the First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderPerson, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder such Person and without impairing or releasing the Lien priorities and other benefits provided in this Agreement or the First Lien Documents (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations rights or remedies under any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Collateral (provided that such sale, exchange, release, surrender, realization, enforcement or other dealing shall only result in a release of the Liens in favor of the Collateral Trustee, for the benefit of the Second Lien Collateral Claimholders, to the extent set forth in Section 5.1) or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderorder that is not inconsistent with the terms of this Agreement; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyCompany or any other Grantor.
(c) Without in any way limiting the generality of the second preceding paragraph (but subject to the rights of the Company and the other Grantors under the Second Lien Documents and subject to the provisions of Section 5.3(a)), the Collateral Trustee and the Second Lien Claimholders may, at any time and from time to time in accordance with the Second Lien Documents and/or applicable law, without the consent of, or notice to, any other Grantor Person, without incurring any liabilities to such Person and without impairing or releasing the Lien priorities and other benefits provided in this Agreement or the Second Lien Documents (even if any right of subrogation or other right or remedy is affected, impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Second Lien Obligations or any First Lien Collateral and any security and any guarantor or guaranty thereof or any liability of the Company or any other Grantor to the First Lien Claimholders Grantor, or any liability incurred directly or indirectly in respect thereof.
thereof (c) Except as otherwise expressly provided herein, including any increase in or extension of the Second Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the Collateral Agents, each on behalf Trustee or any rights or remedies under any of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents Documents; and
(ii) settle or compromise any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral Obligation or any other similar rights a junior secured creditor may have under applicable lawliability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability in any manner or order that is not inconsistent with the terms of this Agreement.
Appears in 2 contracts
Samples: Intercreditor Agreement (Viasystems Group Inc), Collateral Trust Agreement (Viasystems Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the Control Agent, the First Lien Collateral Agent Administrative Agent, the Second Lien Administrative Agent, the Second Lien Claimholders or any of them to enforce any provision of this Agreement or Agreement, any First Lien Loan Credit Document or any Second Lien Credit Document, as applicable shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by the Control Agent, any First Lien Claimholder or the First any Second Lien Collateral AgentClaimholder, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Credit Documents or any of the Second Lien Credit Documents, regardless of any knowledge thereof which the Control Agent, any First Lien Collateral Agent or Claimholder, any First Second Lien Claimholder, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Credit Documents and subject to the provisions of Section 5.3(a5.3(b)), the First Lien Claimholders, the First Lien Collateral Administrative Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Credit Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Administrative Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Administrative Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Administrative Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing (subject, in each case, to the limits set forth in the definition of “First Lien Obligations” and Section 5.3);
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension, subject to the limits set forth in the definition of “First Lien Obligations”) or or, subject to the provisions of this Agreement, otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Administrative Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Credit Documents;; provided, however, the foregoing shall not prohibit the Second Lien Administrative Agent and Second Lien Claimholders from enforcing, consistent with the other terms of this Agreement, any right arising under the Second Lien Credit Agreement as a result of any Grantor’s violation of the terms thereof.
(2iii) subject to the provisions of this Agreement, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Administrative Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof;
(vi) take or fail to take any Lien securing the First Lien Obligations or any other collateral security for any First Lien Obligations or take or fail to take any action which may be necessary or appropriate to ensure that any Lien securing First Lien Obligations or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any property subject to any Lien are applied to the payment of any First Lien Obligation or any Obligation secured thereby; or
(vii) otherwise release, discharge or permit the lapse of any or all Liens securing the First Lien Obligations or any other Liens upon any property at any time securing any First Lien Obligations.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the Control Agent, the First Lien Claimholders and the First Lien Collateral Administrative Agent shall not have any no liability to the Second Lien Collateral Agents Administrative Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim all claims against the Control Agent, any First Lien Claimholder or the First Lien Collateral Agent Administrative Agent, arising out of any and all actions which the Control Agent, the First Lien Claimholders or the First Lien Collateral Administrative Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Credit Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral (including, without limitation, the Control Collateral, as applicable). The Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Administrative Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien ObligationsSubject to Section 5.4, the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable lawCollateral.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.2(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness constituting principal under the First Lien Credit Agreement and the face amount of any letters of credit issued under the First Lien Credit Agreement and not reimbursed to an amount in excess of the Cap Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or the European First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and and, except as otherwise provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement);
(2ii) the collection of the First Lien ObligationsObligations or any obligations of the European Borrower under the First Lien Credit Documents; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral or any European First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral, the European First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, ABL Lender or any of the First Lien other ABL Secured Parties or of the Collateral Agent or any of them the Noteholder Secured Parties to enforce any provision of this Intercreditor Agreement or any First Lien Loan Document of the ABL Documents or Noteholder Documents, as the case may be, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentABL Loan Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Intercreditor Agreement, any of the First Lien Loan ABL Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien ABL Lender or any of the other ABL Secured Parties or the Collateral Agent or any First Lien Claimholder, or any of them, the Noteholder Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company ABL Loan Parties under the ABL Documents and the other Grantors rights of the Noteholder Secured Parties under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Noteholder Documents), the First Lien Claimholders, the First Lien Collateral Agent ABL Lender and any of them the other ABL Secured Parties may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderNoteholder Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Intercreditor Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations ABL Debt or any Lien on any First Lien ABL Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorABL Loan Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsABL Debt, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent ABL Lender or any of the other First Lien ClaimholdersABL Secured Parties, the First Lien Obligations ABL Debt or any of the First Lien ABL Documents; except that the ABL Lender and the ABL Secured Parties may not consent to any amendment, modification or waiver to the ABL Documents that:
(A) results in the sum of (1) the aggregate principal amount of loans outstanding under the ABL Documents, plus (2) the unused portion of the revolving commitments under the ABL Documents, plus (3) the aggregate face amount of all letters of credit issued or deemed issued and outstanding under the ABL Documents plus (4) the Cash Management Obligations plus the Hedging Obligations (in the case of each of the foregoing, as determined after giving effect to such amendment, modification or waiver) exceeding $75,000,000,
(B) increase the “Applicable Margins” or similar component of the interest rate under the ABL Loan DocumentsAgreement in a manner that would result in the total yield on the ABL Date to exceed by more than two (2%) percent per annum the total yield on the ABL Debt as in effect on the date hereof (excluding increases resulting from the accrual or payment of interest at the default rate),
(C) modify or add any covenant or event of default under the ABL Documents that directly restricts Borrower or its subsidiaries from making payments of the Noteholder Debt that would otherwise be permitted under the ABL Documents as in effect on the date hereof,
(D) contractually subordinate the Liens of the ABL Secured Parties to any other debt of ABL Loan Parties,
(E) extend the stated maturity date of the Indebtedness under the ABL Loan Agreement to a date beyond the stated maturity date of the Notes (as in effect on the date hereof or as hereafter extended), or
(F) contravene the provisions of this Intercreditor Agreement;
(2ii) until Discharge of Priority Debt, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien ABL Collateral or any liability of any ABL Loan Party to the Company ABL Lender or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agentother ABL Secured Parties, or any liability incurred directly or indirectly in respect thereofthereof in accordance with the terms hereof;
(3iii) settle or compromise any First Lien Obligation of the ABL Debt or any other liability of the Company or any other Grantor ABL Loan Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsABL Debt) in any manner or order, but subject however to the terms of this Intercreditor Agreement; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any ABL Loan Party or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor ABL Loan Party or any First Lien ABL Collateral and any security and any guarantor or any liability of any ABL Loan Party to any of the Company or any other Grantor to the First Lien Claimholders ABL Secured Parties or any liability incurred directly or indirectly in respect thereof, but subject however to the terms of this Intercreditor Agreement.
(c) Except as otherwise expressly provided herein, Each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders Agent and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree ABL Lender agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Collateral or any other similar rights a junior secured creditor may have under applicable lawlaw with respect to the ABL Collateral.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
No Waiver of Lien Priorities. (a) No right of the any First Lien Claimholders, Secured Party or the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Credit Party or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a))paragraph, the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorCredit Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Credit Party to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor Credit Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor security or any other Person Credit Party or any securityother Person, and elect any remedy and otherwise deal freely with the Company, any other Grantor Credit Party or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor Credit Party to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinSubject to the provisions of Section 5.1(a) hereof, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Party, and the Second Lien Collateral AgentsAgent, each for itself and on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien ObligationsExcept as expressly provided in Section 5.1(a), the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Administrative Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Administrative Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Administrative Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Administrative Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Administrative Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Administrative Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Administrative Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Administrative Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness constituting principal under the First Lien Credit Agreement and the face amount of any letters of credit issued under the First Lien Credit Agreement and not reimbursed to an amount in excess of the Cap Amount;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Administrative Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Administrative Agent shall not have any no liability to the Second Lien Collateral Agents Administrative Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Administrative Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Administrative Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Administrative Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAdministrative Agent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Second Lien Claimholders, the First Second Lien Collateral Agent Agents, or any of them to enforce any provision of this Agreement or any First Second Lien Loan Document (except as set forth in such documents) shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Issuers or any other Grantor or by any act or failure to act by any First Second Lien Claimholder or the First any Second Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien DocumentsDocuments (except as set forth in such documents), regardless of any knowledge thereof which the First any Second Lien Collateral Agent or any First Second Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Issuers and the other Grantors Obligors under the First Second Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First any Second Lien ClaimholdersClaimholder, the First any Second Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Second Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any other Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Second Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorObligor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Second Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First such Second Lien Collateral Agent or any of the other First Second Lien Claimholders, the First applicable Second Lien Obligations or any of the First applicable Second Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Obligor to any of the First such Second Lien Claimholders or the First Second Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Second Lien Obligation or any other liability of the Company or any other Grantor Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Second Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any Obligor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Obligor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor Obligor to the First Second Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each Second Lien Collateral AgentsAgent, each on behalf of itself and each other the applicable Second Lien ClaimholderClaimholders, also agrees that the First Second Lien Claimholders and the First Second Lien Collateral Agent Agents shall not have any no liability to the any other Second Lien Collateral Agents Agent or any such other Second Lien Claimholders, and the each Second Lien Collateral AgentsAgent, each on behalf of itself and each other the applicable Second Lien ClaimholderClaimholders, hereby waives any claim against any First other Second Lien Claimholder or the First Second Lien Collateral Agent Agent, arising out of any and all actions which the First any Second Lien Claimholders Claimholder or the First Second Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Second Lien Loan Documents (other than this Agreement)Documents;
(2) the collection of the First Second Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Each Second Lien Collateral AgentsAgent, each on behalf of itself and each other the applicable Second Lien ClaimholderClaimholders, agree agrees that the First other Second Lien Claimholders and the First Second Lien Collateral Agent do not Agents have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Second Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First First-Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First First-Lien Claimholder Creditor or the First First-Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First First-Lien Loan Documents or any of the Second Second-Lien Notes Documents, regardless of any knowledge thereof which the First First-Lien Collateral Agent or any First the First-Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First First-Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First First-Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien ClaimholderCreditor, without incurring any liabilities to the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditor and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditors is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First First-Lien Obligations or any Lien on any First First-Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First First-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First First-Lien Collateral Agent or any of the other First First-Lien ClaimholdersCreditors, the First First-Lien Obligations or any of the First First-Lien Loan Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First First-Lien Collateral or any liability of the Company or any other Grantor to any of the First First-Lien Claimholders Creditors or the First First-Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First First-Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First First-Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or with respect to any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First First-Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First First-Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof; and
(vi) release or discharge any First-Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto.
(c) Except So long as otherwise expressly provided hereinthe Discharge of First-Lien Obligations has not occurred, the Second Second-Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second the Second-Lien ClaimholderCreditors, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Second-Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
Creditor (1) the First Lien Loan Documents (other than this Agreement);
(2) the collection by its acceptance of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect benefits of the maintenance or preservation of the First Second-Lien CollateralNotes Documents), the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First First-Lien Loan Credit Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of Holdings, the Company Borrower or any other Grantor or by any act or failure to act by any First First-Lien Claimholder Creditor or the First First-Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First First-Lien Loan Credit Documents or any of the Second Second-Lien Credit Documents, regardless of any knowledge thereof which the First First-Lien Collateral Agent or any First the First-Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First First-Lien Loan Documents and subject to the provisions of Section 5.3(a)Credit Documents), the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First First-Lien Loan Credit Documents and/or applicable law, without the consent of, or notice to, the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien ClaimholderCreditor, without incurring any liabilities to the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditor and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditors is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First First-Lien Obligations or any Lien on any First First-Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First First-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First First-Lien Collateral Agent or any of the other First First-Lien ClaimholdersCreditors, the First First-Lien Obligations or any of the First First-Lien Loan Credit Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First First-Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First First-Lien Claimholders Creditors or the First First-Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First First-Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First First-Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First First-Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First First-Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof; and
(vi) release or discharge any First-Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto.
(c) Except as otherwise expressly provided herein, the Second The Second-Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second the Second-Lien ClaimholderCreditors, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Second-Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
Creditor (1) the First Lien Loan Documents (other than this Agreement);
(2) the collection by its acceptance of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect benefits of the maintenance or preservation of the First Second-Lien CollateralCredit Documents), the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (EnerSys)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them the Secured Parties (including any Collateral Agent) to enforce any provision of this Agreement or any First Lien Loan other Secured Debt Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Credit Party or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien other Secured Debt Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Credit Parties under the First Lien Loan Debt Documents and subject to the provisions of Section 5.3(a3.01(f) and Section 5.03(a)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent Administrative Agent, and any of them may, at any time and from time to time in accordance with the First Lien Loan Debt Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Collateral Agents or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the any Second Lien Collateral Agents or any other Second Secured Party (except to the extent arising from a breach by such First Lien Claimholder Secured Party of the provisions of this Agreement) and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) subject to compliance with Section 5.03 and Section 8.03, change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other GrantorCredit Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Administrative Agent, or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Debt Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Credit Party to any of the First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Priority Obligation or any other liability of the Company or any other Grantor Credit Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Priority Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor Credit Party or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor Credit Party or any First Lien Collateral and any security and any guarantor Guarantor or any liability of the Company or any other Grantor Credit Party to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except (x) to the extent arising from a breach by any First Lien Secured Party of the provisions of this Agreement or (y) as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent and each Second Lien Representative, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, each also agrees that the First Lien Claimholders and Secured Parties shall have no liability to such Person, or any of the Second Lien Secured Parties.
(d) Except to the extent arising from a breach by such First Lien Collateral Agent shall not have any liability to Secured Party of the provisions of this Agreement, the Second Lien Collateral Agents or any such Agent and each Second Lien ClaimholdersRepresentative, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, each hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Secured Party arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent Secured Parties may take or permit or omit to take with respect to:
(1i) the First Lien Loan Debt Documents (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The .
(e) Except as expressly otherwise provided herein, the Second Lien Collateral AgentsAgent and each Second Lien Representative, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree each agrees that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Parties have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersLenders, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Lender Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Lender or the any First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Lender Documents or any of the Second Lien Priority Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderLenders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Lender Documents and subject to the provisions of Section 5.3(a))5.3 and Section 10.19) the First Lien Lenders, the First Lien Claimholders, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Lender Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderPriority Secured Parties, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Priority Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Priority Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
: (1) subject to the definition of First Lien Debt Cap, change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations Lender Claims or any Lien on any First Lien Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsLender Claims, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations Agents or any of the First Lien Loan Lenders, the First Lien Lender Claims or any of the First Lien Lender Documents;
; (2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Lender Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Lenders or the First Lien Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
; (3) settle or compromise any First Lien Lender Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsLender Claims) in any manner or order; and
and (4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Lender Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Lenders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinSubject to the terms of this Agreement (and subject to the rights of the Company and the other Grantors under the Second Priority Documents and subject to the provisions of Section 5.3 and Section 10.19), the Second Priority Secured Parties, the Second Lien Collateral AgentsAgent and any of them may, each on behalf of itself at any time and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability from time to time in accordance with the Second Lien Collateral Agents or any such Second Lien ClaimholdersPriority Documents and/or applicable law, and without the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure uponconsent of, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateralnotice to, the First Lien Obligations Agents or otherwise.
(d) Until the Discharge of any First Lien ObligationsLender, without incurring any liabilities to the First Lien Agents or any First Lien Lender and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any First Lien Agent or any First Lien Lenders is affected, impaired or extinguished thereby) do any one or more of the following: (1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Second Priority Claims or any Lien on any Second Priority Collateral or guaranty thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Second Priority Claims, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the Second Lien Agent or any of the Second Priority Secured Parties, the Second Lien Collateral AgentsPriority Claims or any of the Second Priority Documents; (2) sell, each on behalf of itself and each other applicable Second Lien Claimholderexchange, agree not to assert and hereby waivesrelease, to the fullest extent permitted by lawsurrender, any right to demandrealize upon, request, plead enforce or otherwise assert or otherwise claim deal with in any manner and in any order any part of the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Second Priority Collateral or any liability of the Company or any other similar rights a junior secured creditor may have under applicable lawGrantor to the Second Priority Secured Parties or the Second Lien Agent, or any liability incurred directly or indirectly in respect thereof; (3) settle or compromise any Second Priority Secured Party Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Second Priority Claims) in any manner or order; and (4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Company, any other Grantor or any Second Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the Second Priority Secured Parties or any liability incurred directly or indirectly in respect thereof.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of any of the First Lien Claimholders, the First Lien Collateral any Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien other Claimholder or the First Lien Collateral any Agent, or by any noncompliance by any Person person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral any Agent or any First Lien Claimholder, or any of them, other Claimholder may have (or be otherwise charged with).
(b) Without in any way limiting the generality of the foregoing paragraph provisions of Section 7.3(a) (but subject to the any rights of the Company and the other Grantors under the First Lien Loan ABL Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them ABL Claimholders may, at any time and from time to time in accordance with the First Lien Loan ABL Documents and/or or applicable law, without the consent of, or notice to, any of the Second Lien Collateral Agents or any other Second Lien ClaimholderTerm Claimholders, without incurring any liabilities to any of the Second Lien Collateral Agents or any other Second Lien Claimholder Term Claimholders and without impairing or releasing affecting the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any of the Second Lien Collateral Agents or any other Second Lien Claimholder Term Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations ABL Debt or any Lien on any First Lien ABL Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First ABL Debt, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by any of the ABL Claimholders, the ABL Debt or any of the ABL Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order all or any part of the ABL Priority Collateral or any liability of any Grantor to any ABL Claimholder, or any liability incurred directly or indirectly in respect thereof;
(iii) settle or compromise any ABL Debt or any other liability of any Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the ABL Debt) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or remedy against any Grantor or any other person, elect any remedy and otherwise deal freely with any Grantor or any ABL Priority Collateral and any guarantor or any liability of any Grantor to any of the ABL Claimholders or any liability incurred directly or indirectly in respect thereof. - 55 - WEIL:\96331350\2\35899.0561
(c) Except as otherwise provided herein, the Term Agent also agrees that the ABL Claimholders shall have no liability to any of the Term Claimholders, and the Term Agent hereby waives any claim of the Term Claimholders against any of the ABL Claimholders arising out of any and all actions which any of the ABL Claimholders may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(i) the ABL Documents;
(ii) the collection of the ABL Debt; or
(iii) the foreclosure upon, or sale, liquidation or other disposition of, or the failure to foreclose upon, or sell, liquidate or otherwise dispose of, any ABL Priority Collateral. The Term Agent agrees that the ABL Claimholders have no duty to the Term Claimholders in respect of the maintenance or preservation of the ABL Priority Collateral, the ABL Debt, or otherwise.
(d) Without in any way limiting the generality of the provisions of Section 7.3(a) (but subject to any rights of the Grantors under the Term Documents and subject to the provisions of Section 5.3(b)), the Term Claimholders may, at any time and from time to time in accordance with the Term Documents or applicable law, without the consent of, or notice to, any of the ABL Claimholders, without incurring any liabilities to any of the ABL Claimholders and without impairing or affecting the Lien Obligationspriorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any of the ABL Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Term Debt or any Lien on any Term Collateral or guarantee thereof or any liability of any Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Term Debt, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Term Claimholders, the Term Debt or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Term Documents;
(2ii) subject to Section 3.9, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order all or any part of the First Lien Term Priority Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentTerm Claimholder, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Term Debt or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsTerm Debt) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Term Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to any of the First Lien Term Claimholders or any liability incurred directly or indirectly in respect thereof.
(ce) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, ABL Agent also agrees that the First Lien Term Claimholders and the First Lien Collateral Agent shall not have any no liability to any of the Second Lien Collateral Agents or any such Second Lien ABL Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, ABL Agent hereby waives any claim of the ABL Claimholders against any First Lien Claimholder or of the First Lien Collateral Agent Term Claimholders arising out of any and all actions which WEIL:\96331350\2\35899.0561 any of the First Lien Term Claimholders or may, pursuant to the First Lien Collateral Agent may take or terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Term Documents;
(2ii) the collection of the First Lien ObligationsTerm Debt; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, or the failure to foreclose upon, or sell, liquidate or otherwise dispose of, any First Lien Term Priority Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree ABL Agent agrees that the First Lien Term Claimholders and the First Lien Collateral Agent do not have any no duty to them the ABL Claimholders in respect of the maintenance or preservation of the First Lien Term Priority Collateral, the First Lien Obligations Term Debt, or otherwise.
(df) Until the Discharge Payment in Full of First Lien Obligations, ABL Priority Debt and the Second Lien Collateral AgentsPayment in Full of Term Priority Debt, each on behalf of itself the Term Agent and each other applicable Second Lien Claimholder, agree the ABL Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the other Agent’s Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent Secured Parties or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien ClaimholderSecured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.03(a)), the First Lien Claimholders, the First Lien Collateral Agent Secured Parties and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Collateral Agents or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the any Second Lien Collateral Agents or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Shared Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Party, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Shared Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Shared Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also Secured Parties agrees that the First Lien Claimholders and the First Lien Collateral Agent Secured Parties shall not have any no liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersSecured Parties, and each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Secured Parties hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Secured Party arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent any of them may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement), including, without limitation, any failure to perfect or obtain perfected security interests in the Shared Collateral;
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Shared Collateral. The Each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Secured Parties agrees that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Parties have any no duty to them in respect of the maintenance or preservation of the First Lien Shared Collateral, the First Lien Obligations or otherwise.
(d) . Until the Discharge of First Lien Obligations, each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Secured Parties agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any Shared Collateral or any other similar rights a junior secured creditor may have under applicable law. None of the First Lien Secured Parties nor any of their respective directors, officers, employees or agents will be liable for failure to demand, collect or realize upon any of the Shared Collateral or for any delay in doing so, or will be under any obligation to sell or otherwise dispose of any Shared Collateral upon the request of any Grantor or upon the request of the Second Lien Collateral Agent, any other Second Lien Secured Party or any other Person or to take any other action whatsoever with regard to the Shared Collateral or any part thereof. Without limiting the foregoing, each Second Lien Secured Party agrees that no First Lien Secured Party shall have any duty or obligation to realize first upon any type of Shared Collateral or to sell or otherwise dispose of all or any portion of the Shared Collateral in any manner, including as a result of the application of the principles of marshaling or otherwise, that would maximize the return to any First Lien Secured Parties or any Second Lien Secured Parties, notwithstanding that the order and timing of any such realization, sale or other disposition may affect the amount of proceeds actually received by such Persons from such realization, sale or other disposition.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(ba) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), as between the First Lien Collateral Agent, the First Lien Claimholders, the Second Lien Collateral Agent and the Second Lien Claimholders, the First Lien Collateral Agent Agent, the First Lien Claimholders and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness constituting principal under the First Lien Credit Agreement (it being understood that the full principal amount of any Revolving Credit Commitments shall be deemed to be principal);
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement)Documents;
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Spanish Broadcasting System Inc)
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersABL Agent, the First Lien Collateral Agent other ABL Secured Parties or any of them to enforce any provision of this Agreement or any First Lien Loan ABL Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company any Borrower or any other Grantor or by any act or failure to act by the ABL Agent or any First Lien Claimholder or the First Lien Collateral Agentother ABL Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan ABL Documents or any of the Second Lien Term Documents, regardless of any knowledge thereof which the First Lien Collateral ABL Agent or any First Lien Claimholderthe other ABL Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company any Borrower and the other Grantors under the First Lien Loan ABL Documents and subject to the other provisions of Section 5.3(a)this Agreement), the First Lien ClaimholdersABL Agent, the First Lien Collateral Agent other ABL Secured Parties and any of them them, may, at any time and from time to time in accordance with the First Lien Loan ABL Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Term Representatives or any other Second Lien ClaimholderTerm Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Term Representatives or any other Second Lien Claimholder Term Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Term Administrative Agent or any other Second Lien Claimholder Term Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2A) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof and applicable law) and in any order any part of the First Lien ABL Priority Collateral or any liability of the Company any Borrower or any other Grantor to any of the First Lien Claimholders ABL Agent or the First Lien Collateral Agentother ABL Secured Parties, or any liability incurred directly or indirectly in respect thereof;
(3B) settle or compromise any First Lien ABL Obligation or any other liability of the Company any Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(4C) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Companyany Borrower, any other Grantor or any First Lien ABL Priority Collateral and any security and any guarantor or any liability of the Company any Borrower or any other Grantor to the First Lien Claimholders ABL Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinEach Term Representative, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderTerm Secured Parties that it represents, also agrees that the First Lien Claimholders ABL Agent and the First Lien Collateral Agent other ABL Secured Parties shall not have any no liability to the Second Lien Collateral Agents Term Representatives or any such Second Lien Claimholdersother Term Secured Party, and the Second Lien Collateral Agentseach Term Representative, each on behalf of itself and each the other applicable Second Lien ClaimholderTerm Secured Parties that it represents, hereby waives any claim against the ABL Agent and any First Lien Claimholder or the First Lien Collateral Agent other ABL Secured Party, arising out of any and all actions which the First Lien Claimholders ABL Agent or the First Lien Collateral Agent other ABL Secured Parties may take or permit or omit to take with respect to:
(1A) the First Lien Loan ABL Documents (other than this Agreement);
(2B) the collection of the First Lien ABL Obligations; or
(3C) the foreclosure upon, or sale, liquidation or other disposition Disposition of, any First Lien Collateral. The Second Lien ABL Priority Collateral Agentsin accordance with this Agreement and applicable law.
(iv) Each Term Representative, each on behalf of itself and each the other applicable Second Lien ClaimholderTerm Secured Parties that it represents, agree agrees that the First Lien Claimholders ABL Agent and the First Lien Collateral Agent do not other ABL Secured Parties have any no duty to them the Term Representative or the other Term Secured Parties in respect of the maintenance or preservation of the First Lien ABL Priority Collateral, the First Lien ABL Obligations or otherwise, except as otherwise provided in this Agreement.
(dv) Until the Discharge of First Lien ObligationsEach Term Representative, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderTerm Secured Parties that it represents, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the any First Lien Claimholders, Secured Party or the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents Documents) and subject to the provisions of Section 5.3(a)5.3(b), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount (subject to Section 5.3(a)), tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order;
(iv) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for the account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(v) release or discharge any First Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto; and
(4vi) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Party, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1a) the First Lien Loan Documents Documents, (other than this Agreement);
(2b) the collection of the First Lien Obligations; or
Obligations or (3c) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor Loan Party or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which that the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company Borrower and the other Grantors Loan Parties under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.03(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company Borrower or any other GrantorLoan Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Finance Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Borrower or any other Grantor Loan Party to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company Borrower or any other Grantor Loan Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums sums, by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security of any other Loan Party or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor Loan Party or any First Lien Collateral and any security and any guarantor guarantor, or any liability of the Company Borrower or any other Grantor Loan Party to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersClaimholder, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Finance Documents;
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, or the failure to foreclose upon, or sell, liquidate or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert assert, or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Stockholders Agreement
No Waiver of Lien Priorities. (a) No right of the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First First-Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of Holdings, the Company Borrower or any other Grantor or by any act or failure to act by any First First-Lien Claimholder Creditor or the First First-Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First First-Lien Loan Documents or any of the Second Second-Lien Note Documents, regardless of any knowledge thereof which the First First-Lien Collateral Agent or any First the First-Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First First-Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First First- Lien ClaimholdersCreditors, the First First-Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First First-Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien ClaimholderCreditor, without incurring any liabilities to the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditor and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditors is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First First-Lien Obligations or any Lien on any First First-Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First First-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First First-Lien Collateral Agent or any of the other First First-Lien ClaimholdersCreditors, the First First-Lien Obligations or any of the First First-Lien Loan Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First First-Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First First-Lien Claimholders Creditors or the First First-Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First First-Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First First-Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any other Grantor or any other Person or with respect to any security, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First First-Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First First-Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof;
(vi) release or discharge any First-Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto;
(vii) take or fail to take any Lien securing the First-Lien Obligations or any other collateral security for any First-Lien Obligations or take or fail to take any action which may be necessary or appropriate to ensure that any Lien securing First-Lien Obligations or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any property subject to any Lien are applied to the payment of any First-Lien Obligation or any Obligation secured thereby; or
(viii) otherwise release, discharge or permit the lapse of any or all Liens securing the First-Lien Obligations or any other Liens upon any property at any time securing any First Lien Obligations. Notwithstanding the above, any amendment, waiver or consent in respect of any of the First-Lien Security Documents shall be consistent with the provisions Section 5.3(c) hereof.
(c) Except as otherwise expressly provided herein, the Second The Second-Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second the Second-Lien ClaimholderCreditors, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Second-Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
Creditor (1) the First Lien Loan Documents (other than this Agreement);
(2) the collection by its acceptance of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect benefits of the maintenance or preservation of the First Second-Lien CollateralNote Documents), the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Second Lien Agent:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or Obligations, any of the First Lien Loan DocumentsDocuments or the ISDA Master Agreement;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Agent also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and Second Lien Agent, for itself and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this or the ISDA Master Agreement);
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise Dispose of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of for itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Obligations, or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Starboard Resources, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent Agent, any First Lien Secured Debt Representative or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor Guarantor or by any act or failure to act by any First Lien Claimholder or Secured Party, the First Lien Collateral AgentAgent or any First Lien Secured Debt Representative, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Document or any of the Second Lien DocumentsDocument, regardless of any knowledge thereof which the First Lien Collateral Agent Agent, any First Lien Secured Debt Representative or any First Lien ClaimholderSecured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors Guarantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent Agent, the First Lien Secured Debt Representatives and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents to which such Person is a party and/or applicable law, without the consent of, of or notice to, to the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Parties, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Parties is affected, impaired or extinguished thereby) do any one or more of the following:
55 (1i) change the manner, place or terms of payment or payment, change or extend the time of payment of, of or amend, renew, exchange, increase or alter, alter the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations Guaranty or any liability of the Company Borrower or any other GrantorGuarantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
; (2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Borrower or any other Grantor Guarantor to any of the First Lien Claimholders Secured Parties, the First Lien Secured Debt Representatives or the First Lien Collateral Agent, Agent or any liability incurred directly or indirectly in respect thereof;
; (3iii) settle or compromise any First Lien Obligation or any other liability of the Company Borrower or any other Grantor Guarantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
and (4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any Guarantor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor Guarantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor Guarantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, each of the Second Lien Collateral Agents, each Agent (on behalf of itself and each other applicable the Second Lien Claimholder, also Secured Parties) and the Second Lien Secured Parties agrees that none of the First Lien Claimholders and Secured Parties, the First Lien Collateral Agent or the First Lien Administrative Agent shall not have any liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Party, and the Second Lien Collateral Agents, each Agent (on behalf of itself and each other applicable the Second Lien Claimholder, Secured Parties) and each Second Lien Secured Party hereby waives any claim against any First Lien Claimholder or Secured Party, the First Lien Collateral Agent or any First Lien Secured Debt Representative arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents (other than this Agreement);
; (2ii) the collection of the First Lien Obligations; or
or (3iii) the foreclosure upon, or sale, liquidation or other disposition sale of, any or the failure to foreclose upon, or sell, liquidate or otherwise dispose of, the First Lien Collateral. The Second Lien Collateral Agents, each Agent (on behalf of itself and each other applicable the Second Lien Claimholder, Secured Parties) and each Second Lien Secured Party agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation none of the First Lien CollateralSecured Parties, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.Lien
Appears in 1 contract
Samples: Collateral Agency and Intercreditor Agreement (Talen Energy Supply, LLC)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Note Facility Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness constituting principal under the First Lien Credit Agreement and the face amount of any letters of credit issued under the First Lien Credit Agreement and not reimbursed to an amount in excess of the Cap Amount;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent Senior Noteholders or any of them to enforce any provision of this Agreement or any First Lien Loan Senior Noteholder Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Obligor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSenior Noteholder or, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Noteholder Documents or any of the Second Lien 11% Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien ClaimholderSenior Noteholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Obligors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Noteholder Documents), the First Lien ClaimholdersSenior Noteholders, the First Lien Collateral Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien Claimholder11% Noteholder, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder 11% Noteholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder 11% Noteholder is affected, impaired or extinguished thereby) do any one or more of the following, provided no release of any Lien granted to the Collateral Agent or the 11% Noteholders on the Common Collateral shall result therefrom:
(1i) subject to the terms of the Indenture, change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Senior Obligations or any Lien on any First Lien Senior Noteholder Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorObligor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Senior Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSenior Noteholders, the First Lien Senior Obligations or any of the First Lien Loan Senior Noteholder Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Noteholder Collateral or any liability of any Obligor to the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSenior Noteholders, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Senior Obligation or any other liability of the Company or any other Grantor Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Senior Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any Obligor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Obligor or any First Lien Senior Noteholder Collateral and any security and any guarantor or any liability of the Company or any other Grantor Obligor to the First Lien Claimholders Senior Noteholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First First-Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by any First First-Lien Claimholder Creditor or the First First-Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First First-Lien Loan Documents or any of the Second Second-Lien Subordinated Notes Documents, regardless of any knowledge thereof which the First First-Lien Collateral Agent or any First the First-Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First First-Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First First-Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien ClaimholderCreditor, without incurring any liabilities to the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditor and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Second-Lien Collateral Agents Agent or any other Second Second-Lien Claimholder Creditors is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First First-Lien Obligations or any Lien on any First First-Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First First-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First First-Lien Collateral Agent or any of the other First First-Lien ClaimholdersCreditors, the First First-Lien Obligations or any of the First First-Lien Loan Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First First-Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First First-Lien Claimholders Creditors or the First First-Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First First-Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First First-Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any other Grantor or any other Person or with respect to any security, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First First-Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First First-Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof; and
(vi) release or discharge any First-Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto.
(c) Except as otherwise expressly provided herein, the Second The Second-Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second the Second-Lien ClaimholderCreditors, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Second-Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
Creditor (1) the First Lien Loan Documents (other than this Agreement);
(2) the collection by its acceptance of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect benefits of the maintenance or preservation of the First Second-Lien CollateralSubordinated Notes Documents), the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (CMP Susquehanna Radio Holdings Corp.)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent Lender or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentLender, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Lender or any First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent Lender and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Second Lien Trustee:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent Lender or any of the other First Lien Claimholders, the First Lien Obligations Obligations, or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the outstanding principal amount under the First Lien Credit Agreement and, without duplication, the then extant Letter of Credit Usage to an amount in excess of the First Lien Cap;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentLender, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Trustee also agrees that the First Lien Claimholders and the First Lien Collateral Agent Lender shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Trustee hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Lender, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or Lender may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Trustee agrees that the First Lien Claimholders and the First Lien Collateral Agent do not Lender have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Obligations, or otherwise.
(d) Until the Discharge of First Lien Priority Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Trustee agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Platinum Energy Solutions, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ABL Agent and the ABL Claimholders, the First Lien Collateral Term Loan Agent and the Term Loan Claimholders, or any of them to enforce any provision of this Agreement or any First Lien Loan Document their respective Credit Documents shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agentsuch party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien their respective Credit Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, such party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)applicable Credit Documents), the First Lien ABL Agent and the ABL Claimholders, and the First Lien Collateral Term Loan Agent and the Term Loan Claimholders, and any of them may, at any time and from time to time in accordance with the First Lien Loan their respective Credit Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien Claimholder, Claimholders and without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing (subject, in each case, to any limitations expressly set forth in this Agreement);
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien their respective Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien their respective Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension, subject to any limitations expressly set forth in this Agreement) or or, subject to the provisions of this Agreement, otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral such Agent or any of the other First Lien such Claimholders, the First Lien their respective Obligations or any of their respective Credit Documents; provided, however, the First Lien Loan Documentsforegoing shall not prohibit the other Agent and the other Claimholders from enforcing, consistent with the other terms of this Agreement, any right arising under their respective Credit Agreement as a result of any Grantor’s violation of the terms hereof;
(2iii) subject to the provisions of this Agreement, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien such Claimholders or the First Lien Collateral such Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise their respective Obligations or any First Lien Obligation portion thereof or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien their respective Obligations) in any manner or order; and;
(4v) subject to the restrictions set forth in this Agreement, exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien such Claimholders or any liability incurred directly or indirectly in respect thereof;
(vi) take or fail to take any Lien securing their respective Obligations or any other collateral security for such Obligations or take or fail to take any action which may be necessary or appropriate to ensure that any Lien securing such Obligations or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien, provided that Liens taken in violation of Section 2.5 shall be subject to the provisions of Section 2.5; or
(vii) otherwise release, discharge or permit the lapse of any or all Liens securing their respective Obligations or any other Liens upon any property at any time securing any such Obligations.
(c) Except as otherwise expressly provided hereinThe Term Loan Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Claimholders, also agrees that the First Lien Claimholders ABL Agent and the First Lien Collateral Agent ABL Claimholders shall not have any no liability to the Second Lien Collateral Agents Term Loan Agent or any such Second Lien the Term Loan Claimholders, and the Second Lien Collateral Agents, each such Term Loan Agent on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Claimholders, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral ABL Agent and the ABL Claimholders, arising out of any and all actions which the First Lien Claimholders ABL Agent or the First Lien Collateral Agent ABL Claimholders may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien to their ABL Priority Collateral. The Second Lien Collateral AgentsTerm Loan Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Claimholders for which it acts as agent, agree agrees that the First Lien ABL Agent and ABL Claimholders and the First Lien Collateral Agent do not shall have any no duty to them in respect of the maintenance or preservation of the First Lien ABL Priority Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien ObligationsEach Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Claimholders for whom it acts as Agent, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (U.S. Silica Holdings, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderSecured Parties, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.3(b)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Parties, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Parties is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) except as otherwise set forth in this Agreement, change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2ii) subject to the provisions of this Agreement, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Parties, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, of any First Lien Collateral, in every case if undertaken in accordance with applicable law. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.; and
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law; provided that the foregoing shall not prevent the Second Lien Collateral Agent from exercising the rights of an unsecured creditor to seek appraisals or valuations so long as the same does not adversely affect the rights and remedies of the First Lien Secured Parties.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersABL Secured Parties, the First Lien ABL Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan ABL Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder ABL Secured Party or the First Lien ABL Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan ABL Documents, any of the Term Documents or any of the Second Lien Notes Documents, regardless of any knowledge thereof which the First Lien ABL Collateral Agent or any First Lien Claimholderthe ABL Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan ABL Documents and subject to the provisions of Section 5.3(a3.4(c)), the First Lien ClaimholdersABL Secured Parties, the First Lien ABL Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan ABL Documents and/or applicable law, without the consent of, or notice to, the Second Lien Term Collateral Agents Agent, any Term Secured Party, the Notes Collateral Agent or any other Second Lien Claimholder, Notes Secured Party without incurring any liabilities to the Second Lien Term Collateral Agents Agent, any Term Secured Parties, the Notes Collateral Agent or any other Second Lien Claimholder Notes Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Term Collateral Agents Agent, any Term Secured Party, the Notes Collateral Agent or any other Second Lien Claimholder Notes Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) : sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the First Lien ABL Priority Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders ABL Secured Parties or the First Lien ABL Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) ; settle or compromise any First Lien ABL Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof thereof; and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien ABL Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders ABL Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe Term Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersTerm Secured Parties, and the Second Lien Notes Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe Notes Secured Parties, also agree that the ABL Secured Parties and the ABL Collateral Agent shall have no liability to the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes Secured Party, and the Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives waive any claim against any First Lien Claimholder ABL Secured Party or the First Lien ABL Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders ABL Secured Parties or the First Lien ABL Collateral Agent may take or permit or omit to take with respect to: the ABL Documents (other than this Agreement); the collection of the ABL Obligations; or the foreclosure upon, or sale, liquidation or other disposition of, any ABL Priority Collateral. The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the ABL Secured Parties and the ABL Collateral Agent have no duty to the Term Collateral Agent, the Term Secured Parties, the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of the ABL Priority Collateral, the ABL Obligations or otherwise.
(iv) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, also agrees that the Term Secured Parties and the Term Collateral Agent shall have no liability to the Notes Collateral Agent or any Notes Secured Party, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives any claim against any Term Secured Party or the Term Collateral Agent, arising out of any and all actions which the Term Secured Parties or the Term Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Term Documents (other than this Agreement);
(2) the collection of the First Lien Term Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien ABL Priority Collateral. The Second Lien Notes Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe Notes Secured Parties, agree agrees that the First Lien Claimholders Term Secured Parties and the First Lien Term Collateral Agent do not have any no duty to them the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of the First Lien ABL Priority Collateral, the First Lien Term Obligations or otherwise.
(dv) Until the Discharge of First Lien ObligationsThe Term Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree not to assert and hereby waiveswaive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
(vi) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees not to assert and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them other First Lien Claimholder to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Agent or the any other First Lien Collateral AgentClaimholder, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any other First Lien Claimholder, or any of them, Claimholder may have (or be otherwise charged with).
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, Agent and the other First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the First Lien Loan Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent, any Permitted Additional Second Lien Obligations Representative, or any other Second Lien Claimholder, without incurring any liabilities to the Second Lien Collateral Agents Agent, any Permitted Additional Second Lien Obligations Representative, or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent, any Permitted Additional Second Lien Obligations Representative, or any other Second Lien Claimholder is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Second Lien Agent:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations Debt or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsDebt, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersClaimholder, the First Lien Obligations Debt, or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company any Grantor to First Lien Agent or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentClaimholders, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Debt or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsDebt) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company any Grantor to First Lien Agent or any other Grantor to the First Lien Claimholders Claimholder or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each of Second Lien Collateral AgentsAgent, each on behalf of itself Permitted Additional Second Lien Obligations Representative, and each other applicable Second Lien Claimholder also agrees that First Lien Agent and the other First Lien Claimholders shall have no liability to Second Lien Agent, such Permitted Additional Second Lien Obligations Representative, or any other Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Agent hereby waives any claim against First Lien Agent or any other First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Agent or the any other First Lien Collateral Agent may take or Claimholder may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Lien ObligationsDebt; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself Agent agrees that First Lien Agent and each the other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Debt, or otherwise.
(d) Until the Discharge Payment in Full of First Lien ObligationsPriority Debt, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or -33- otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Representatives, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party, First Lien Representative or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the any other First Lien Representative, First Lien Collateral Agent or any First Lien ClaimholderSecured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)8.7), the First Lien ClaimholdersSecured Parties, the First Lien Representatives, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Representative, any First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties, the First Lien Representatives or the First Lien Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, also agrees that the First Lien Claimholders Secured Parties, the First Lien Representatives and the First Lien Collateral Agent Agents shall not have any no liability to the such Second Lien Representative, such Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Parties, and the such Second Lien Representative and such Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, hereby waives any claim against any First Lien Claimholder Secured Party, any First Lien Representative or the any First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Secured Parties, any First Lien Representative or the any First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree agrees that the First Lien Claimholders Secured Parties, the First Lien Representatives and the First Lien Collateral Agent do not Agents have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the other First Lien ClaimholderSecured Parties, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.03(a)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, waive, consent, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents; provided that no such increase in the First Lien Obligations shall increase the First Lien Obligations to an amount in excess of the Maximum Priority Lien Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderorder (subject in the case of proceeds from any Collateral to the provisions of Section 4.01 and of Section 5.02 of the Guarantee and Collateral Agreement); and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each the other applicable Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such other Second Lien ClaimholdersSecured Party, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each the other applicable Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.; and
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each the other applicable Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral ABL Agent or any of them the other ABL Secured Parties or of the Collateral Agent or the Noteholder Secured Parties to enforce any provision of this Intercreditor Agreement or any First Lien Loan Document of the ABL Documents or Noteholder Documents, as the case may be, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentBorrower, or by any noncompliance by any Person with the terms, provisions and covenants of this Intercreditor Agreement, any of the First Lien Loan ABL Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien ABL Agent or any of the other ABL Secured Parties or the Collateral Agent or any First Lien Claimholder, or any of them, the Noteholder Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrowers under the ABL Documents and the other Grantors rights of the Noteholder Secured Parties under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Noteholder Documents), the First Lien Claimholders, the First Lien Collateral ABL Agent and any of them the other ABL Secured Parties may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderNoteholder Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Intercreditor Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
: (1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations ABL Debt or any Lien on any First Lien ABL Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorBorrower, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsABL Debt, without any restriction as to the amount, tenor or terms of any such increase or extension, and including addition of Vector Tobacco Inc. and any other Affiliate of the Issuer as a “Borrower” under and as defined in the ABL Loan Agreement) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral ABL Agent or any of the other First Lien ClaimholdersABL Secured Parties, the First Lien Obligations ABL Debt or any of the First Lien Loan ABL Documents;
; except that the ABL Agent and the ABL Secured Parties may not consent to any amendment, modification or waiver to the ABL Documents that: (A) results in the sum of (1) the aggregate principal amount of loans outstanding under the ABL Documents, plus (2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part the unused portion of the First Lien Collateral or any liability of revolving commitments under the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.ABL
(c) Except as otherwise expressly provided herein, Each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders Agent and the First Lien Collateral ABL Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Collateral or any other similar rights a junior secured creditor may have under applicable lawlaw with respect to the ABL Collateral. Section 9.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent any Revolving Credit Secured Party or any of them Second Priority Secured Party to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Loan Party or by any act or failure to act by any First Lien Claimholder Revolving Credit Secured Party or the First Lien Collateral Agentby any Second Priority Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Revolving Credit Loan Documents or any of the Second Lien Priority Documents, regardless of any knowledge thereof which the First Lien Collateral Agent any Revolving Secured Party or any First Lien Claimholder, or any of them, Second Priority Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph clause (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)a), the First Lien Claimholderseach Revolving Secured Party and each Second Priority Secured Party, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the any Second Lien Collateral Agents Priority Secured Party or any other Second Lien ClaimholderRevolving Secured Party, respectively, without incurring any liabilities liability to the any Second Lien Collateral Agents Priority Secured Party or any other Second Lien Claimholder Revolving Secured Party, respectively, and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Loan Party or issue, guaranty or obtain letters of credit for account of any Loan Party or otherwise extend credit to any Loan Party, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any Revolving Credit Claim or any Second Priority Claim, as applicable, any Lien in respect of the First Lien Obligations or Collateral, any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations Revolving Credit Claim or any Second Priority Claim, as applicable, or any liability of the Company or any other Grantor, or any liability Loan Party incurred directly or indirectly in respect thereof of any of the foregoing (including any increase in or extension of the First Lien ObligationsRevolving Credit Claims or any Second Priority Claim, as applicable, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner the Revolving Credit Claims, any Liens held by the First Lien Collateral Revolving Credit Agent or the Revolving Credit Secured Parties, or any of the other First Lien ClaimholdersRevolving Credit Loan Documents or the Second Priority Claims, any Liens held by the First Lien Obligations Second Priority Agents or the Second Priority Secured Parties, or any of the First Lien Loan Second Priority Documents;
(2iii) subject to the provisions of this Agreement, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of any Loan Party to the Company Revolving Credit Agent or any other Grantor Revolving Credit Secured Party or to the Second Priority Agents or any of the First Lien Claimholders or the First Lien Collateral AgentSecond Priority Secured Party, or any liability incurred directly or indirectly in respect thereof;
(3iv) subject to the provisions of this Agreement, settle or compromise any First Lien Obligation Revolving Credit Claim or any Second Priority Claim or any other liability of the Company or any other Grantor Loan Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsRevolving Credit Claims and the Second Priority Claims) in any manner or order; andor
(4v) subject to the provisions of this Agreement, exercise or delay in or refrain from exercising any right or remedy against the Company any security or any Loan Party or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyLoan Parties, any other Grantor or any First Lien the Collateral and any security and security, any guarantor or any liability of the Company or any other Grantor Loan Party to the First Lien Claimholders any Revolving Credit Secured Party, or any liability incurred directly or indirectly indirectly, in respect thereofof the foregoing.
(c) Except as otherwise expressly provided hereinEach Second Priority Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderPriority Secured Party, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral Agent each Revolving Credit Secured Party arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent any Revolving Credit Secured Party may take or permit or omit to take with respect to:
: (1i) the First Lien Revolving Credit Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Revolving Credit Claims in a manner not otherwise prohibited by this Agreement, (3iii) the foreclosure upon, or sale, liquidation or other disposition of, the Collateral in a manner not otherwise prohibited by this Agreement, (iv) the release of any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the Collateral in a manner not otherwise prohibited by this Agreement, (v) the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Revolving Credit Claims or otherwise.
the Revolving Credit Liens or (dvi) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead perfection or otherwise assert or otherwise claim the benefit non-perfection of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable lawRevolving Credit Lien.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, ABL Lender or any of the First Lien other ABL Secured Parties or of the Collateral Agent or any of them the Noteholder Secured Parties to enforce any provision of this Intercreditor Agreement or any First Lien Loan Document of the ABL Documents or Noteholder Documents, as the case may be, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentBorrower, or by any noncompliance by any Person with the terms, provisions and covenants of this Intercreditor Agreement, any of the First Lien Loan ABL Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien ABL Lender or any of the other ABL Secured Parties or the Collateral Agent or any First Lien Claimholder, or any of them, the Noteholder Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrowers under the ABL Documents and the other Grantors rights of the Noteholder Secured Parties under the First Lien Loan Documents and subject to the provisions Table of Section 5.3(a)Contents Noteholder Documents), the First Lien Claimholders, the First Lien Collateral Agent ABL Lender and any of them the other ABL Secured Parties may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderNoteholder Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Intercreditor Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations ABL Debt or any Lien on any First Lien ABL Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorBorrower, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsABL Debt, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent ABL Lender or any of the other First Lien ClaimholdersABL Secured Parties, the First Lien Obligations ABL Debt or any of the First Lien ABL Documents; except that the ABL Lender and the ABL Secured Parties may not consent to any amendment, modification or waiver to the ABL Documents that:
(A) results in the sum of (1) the aggregate principal amount of loans outstanding under the ABL Documents, plus (2) the unused portion of the revolving commitments under the ABL Documents, plus (3) the aggregate face amount of all letters of credit issued or deemed issued and outstanding under the ABL Documents plus (4) the Cash Management Obligations plus the Hedging Obligations (in the case of each of the foregoing, as determined after giving effect to such amendment, modification or waiver) exceeding $75,000,000,
(B) increase the “Applicable Margins” or similar component of the interest rate under the ABL Loan DocumentsAgreement in a manner that would result in the total yield on the ABL Date to exceed by more than two (2%) percent per annum the total yield on the ABL Debt as in effect on the date hereof (excluding increases resulting from the accrual or payment of interest at the default rate),
(C) modify or add any covenant or event of default under the ABL Documents that directly restricts the Revolving Loan Borrower or its subsidiaries from making payments of the Noteholder Debt that would otherwise be permitted under the ABL Documents as in effect on the date hereof,
(D) contractually subordinate the Liens of the ABL Secured Parties to any other debt of the Borrowers,
(E) extend the stated maturity date of the Indebtedness under the ABL Loan Agreement to a date beyond the stated maturity date of the Notes (as in effect on the date hereof or as hereafter extended), or
(F) contravene the provisions of this Intercreditor Agreement;
(2ii) until the Discharge of Priority Debt, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien ABL Collateral or any liability of any Borrower to the Company ABL Lender or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agentother ABL Secured Parties, or any liability incurred directly or indirectly in respect thereofthereof in accordance with the terms hereof;
(3iii) settle or compromise any First Lien Obligation of the ABL Debt or any other liability of the Company or any other Grantor Borrower or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsABL Debt) in any manner or order, but subject however to the terms of this Intercreditor Agreement; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Borrower or any First Lien ABL Collateral and any security and any guarantor or any liability of any Borrower to any of the Company or any other Grantor to the First Lien Claimholders ABL Secured Parties or any liability incurred directly or indirectly in respect thereof, but subject however to the terms of this Intercreditor Agreement.
(c) Except as otherwise expressly provided herein, Each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders Agent and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree ABL Lender agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Collateral or any other similar rights a junior secured creditor may have under applicable law.law with respect to the ABL Collateral. Table of Contents
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersTerm Secured Parties, the First Lien Term Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Term Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Term Secured Party or the First Lien Term Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Term Documents, any of the ABL Documents or any of the Second Lien Notes Documents, regardless of any knowledge thereof which the First Lien Term Collateral Agent or any First Lien Claimholderthe Term Secured Parties, or any of them, may have or be otherwise charged with.
(b) . Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Term Documents and subject to the provisions of Section 5.3(a2.4(c)), the First Lien ClaimholdersTerm Secured Parties, the First Lien Term Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Term Documents and/or applicable law, without the consent of, or notice to, the Second Lien ABL Collateral Agents Agent, any ABL Secured Party, the Notes Collateral Agent or any other Second Lien ClaimholderNotes Secured Party, without incurring any liabilities to the Second Lien ABL Collateral Agents Agent, any ABL Secured Party, the Notes Collateral Agent or any other Second Lien Claimholder Notes Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien ABL Collateral Agents Agent, any ABL Secured Party, the Notes Collateral Agent or any other Second Lien Claimholder Notes Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2a) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the First Lien TL Priority Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Term Secured Parties or the First Lien Term Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3b) settle or compromise any First Lien Term Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(4c) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien TL Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Term Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein. The ABL Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders ABL Secured Parties and the First Lien Notes Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersAgent, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Notes Secured Parties, also agree that the Term Secured Parties and the Term Collateral Agent shall have no liability to the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party, and the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives waive any claim against any First Lien Claimholder Term Secured Party or the First Lien Term Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Term Secured Parties or the First Lien Term Collateral Agent may take or permit or omit to take with respect to:
(1a) the First Lien Loan Term Documents (other than this Agreement);
(2b) the collection of the First Lien Term Obligations; or
(3c) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien TL Priority Collateral. The Second Lien ABL Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the First Lien Claimholders Term Secured Parties and the First Lien Term Collateral Agent do not have any no duty to them the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of the First Lien TL Priority Collateral, the First Lien Term Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations. The Notes Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself and each the Notes Secured Parties, also agrees that the ABL Secured Parties and the ABL Collateral Agent shall have no liability to the Notes Collateral Agent or any Notes Secured Party, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives any claim against any ABL Secured Party or the ABL Collateral Agent, arising out of any and all actions which the ABL Secured Parties or the ABL Collateral Agent may take or permit or omit to take with respect to:
(a) the ABL Documents (other applicable Second Lien Claimholderthan this Agreement);
(b) the collection of the ABL Obligations; or
(c) the foreclosure upon, or sale, liquidation or other disposition of, any TL Priority Collateral. The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that the ABL Secured Parties and the ABL Collateral Agent have no duty to the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of the TL Priority Collateral, the ABL Obligations or otherwise. The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties agree not to assert and hereby waiveswaive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the TL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law. The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees not to assert and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the TL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersPari Passu Secured Parties, the First Lien Pari Passu Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Pari Passu Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Parent Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Pari Passu Secured Party or the First Lien Pari Passu Collateral AgentAgents, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Pari Passu Documents, or any of the Second Lien ABL Documents, regardless of any knowledge thereof which the First Lien Pari Passu Collateral Agent Agents or any First Lien Claimholderthe Pari Passu Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Parent Borrower and the other Grantors under the First Lien Loan Pari Passu Documents and subject to the provisions of Section 5.3(a2.4(c)), the First Lien ClaimholdersPari Passu Secured Parties, the First Lien Pari Passu Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Pari Passu Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents ABL Facility Agent or any other Second Lien ClaimholderABL Secured Party, without incurring any liabilities to the Second Lien Collateral Agents ABL Facility Agent or any other Second Lien Claimholder ABL Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents ABL Facility Agent or any other Second Lien Claimholder ABL Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the First Lien Notes Collateral or any liability of the Company Parent Borrower or any other Grantor to any of the First Lien Claimholders Pari Passu Secured Parties or the First Lien Pari Passu Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
(32) settle or compromise any First Pari Passu Lien Obligation or any other liability of the Company Parent Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(43) exercise or delay in or refrain from exercising any right or remedy against the Company Parent Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyParent Borrower, any other Grantor or any First Lien Notes Collateral and any security and any guarantor or any liability of the Company Parent Borrower or any other Grantor to the First Lien Claimholders Pari Passu Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe ABL Facility Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Secured Parties, also agrees that the First Lien Claimholders Pari Passu Secured Parties and the First Lien Pari Passu Collateral Agent Agents shall not have any no liability to the Second Lien Collateral Agents ABL Facility Agent or any such Second Lien ClaimholdersABL Secured Party, and the Second Lien Collateral AgentsABL Facility Agent, each on behalf of itself and each other applicable Second Lien Claimholder, the ABL Secured Parties hereby waives waive any claim against any First Lien Claimholder Pari Passu Secured Party or the First Lien Pari Passu Collateral Agent Agents, arising out of any and all actions which the First Lien Claimholders Pari Passu Secured Parties or the First Lien Pari Passu Collateral Agent Agents may take or permit or omit to take with respect to:
(1) the First Lien Loan Pari Passu Documents (other than this Agreement);
(2) the collection of the First Pari Passu Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Notes Collateral. The Second Lien Collateral AgentsABL Facility Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Secured Parties, agree agrees that the First Lien Claimholders Pari Passu Secured Parties and the First Lien Pari Passu Collateral Agent do not Agents have any no duty to them the ABL Facility Agent or the ABL Secured Parties in respect of the maintenance or preservation of the First Lien Notes Collateral, the First Pari Passu Lien Obligations or otherwise.
(div) Until the Discharge of First Lien ObligationsThe ABL Facility Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Notes Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Junior Lien Intercreditor Agreement (FTS International, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Credit Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Senior Lender Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the any Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Credit Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Credit Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Companies and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Credit Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following, provided no release of any Lien granted to the Trustee or the Noteholders on the Common Collateral shall result therefrom except to the extent expressly permitted under this Agreement:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the any Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsSenior Lender Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Credit Agent or any of the other First Lien ClaimholdersSenior Lenders, the First Lien Obligations Senior Lender Claims or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the any Company or any other Grantor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Credit Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the any Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the any Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the any Company, any other Grantor or any First Lien Senior Lender Collateral and any security and any guarantor or any liability of the any Company or any other Grantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Credit Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Credit Agent, arising out of any and all actions which the First Lien Claimholders Senior Lenders or the First Lien Collateral Credit Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Credit Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (SMART Modular Technologies (DE), Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderSecured Parties, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Creditor or any other of the Second Lien ClaimholderSecured Parties, without incurring any liabilities to the Second Lien Collateral Agents Creditor or any other of the Second Lien Claimholder Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Creditor or any other of the Second Lien Claimholder Secured Parties is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, releaserelease (subject to Section 5.1(e)), surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) subject to Section 3(a)(1), exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsCreditor, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Creditor or any such of the Second Lien ClaimholdersSecured Parties, and the Second Lien Collateral AgentsCreditor, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement)Documents;
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsCreditor, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsCreditor, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Uranium Resources Inc /De/)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Borrowers or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Borrowers under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations Senior Lender Documents or any Lien on in any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorBorrowers, or any liability incurred directly or indirectly in respect thereof (including including, without limitation, any increase in or extension of the First Priority Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSenior Lenders, the First Priority Lien Obligations or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company Borrowers or any other Grantor their Subsidiaries to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Priority Lien Obligation Obligations or any other liability of the Company Borrowers or any other Grantor their Subsidiaries or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including including, without limitation, the First Priority Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrowers or their Subsidiaries or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Borrowers or any First Lien their Subsidiaries and the Senior Lender Collateral and any security and any guarantor or any liability of the Company Borrowers or any other Grantor guarantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.;
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Senior Agent, arising out of any and all actions which the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Priority Lien Obligations; or
, or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien the Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Priority Lien Obligations or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersCreditors, the Control Agent, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Company, the Parent or any other Grantor or by any act or failure to act by any First Lien Claimholder Creditor or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the Control Agent, the First Lien Collateral Agent or any First Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Company, the Parent and the other Grantors under the First Lien Loan Documents and subject to the provisions rights of Section 5.3(athe Second Lien Collateral Agent and the Second Lien Claimholders expressly set forth in this Agreement)), the Control Agent, any First Lien Creditors, the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Company, the Parent or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersCreditors, the First Lien Obligations or any of the First Lien Loan Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Company, the Parent or any other Grantor to any of the First Lien Claimholders Creditors or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First Lien Obligation or any other liability of the Company Company, the Parent or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company Company, the Parent or any other Grantor or any other Person or with respect to any security, and elect any remedy and otherwise deal freely with the Company, the Parent, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Company, the Parent or any other Grantor to the First Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof;
(vi) take or fail to take any Lien securing the First Lien Obligations or any other collateral security for any First Lien Obligations or take or fail to take any action which may be necessary or appropriate to ensure that any Lien securing First Lien Obligations or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any property subject to any Lien are applied to the payment of any First Lien Obligation or any Obligation secured thereby; and
(vii) release or discharge or permit the lapse of any or all Liens securing the First Lien Obligations or any other Liens upon any property at any time securing any First Lien Obligations, or release or discharge any First Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and each other Second Lien Claimholder (by its acceptance of the benefits of the Second Lien Collateral AgentsDocuments), each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, waives any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, Collateral Agents or the First Lien Collateral Agent or any of them Claimholders to enforce any provision of this Agreement or any First Lien Loan Credit Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien such Collateral Agent or Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Credit Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Agents or any First Lien Claimholderthe Claimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Credit Documents and subject to the provisions of Section 5.3(a)Sections 2.3, 2.4 and 5.3), the First Lien Claimholders, Collateral Agents and the First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the First Lien Loan Credit Documents to which they are party and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderCollateral Agent or Claimholders, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder such Persons and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Agents or any rights or remedies under any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Credit Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral (except to the extent provided in this Agreement) or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderorder that is not inconsistent with the terms of this Agreement; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereofGrantor.
(c) Except as otherwise expressly provided hereinUntil the Discharge of Priming Senior Priority Obligations, the Second Lien Junior Priority Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Junior Priority Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersINMETCO Facility Lenders, the First Lien Collateral INMETCO Agent or any of them to enforce any provision of this Agreement or any First Lien Loan INMETCO Facility Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Issuer or any other Grantor or by any act or failure to act by any First Lien Claimholder INMETCO Facility Lender or the First Lien Collateral INMETCO Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan INMETCO Facility Documents or any of the Second Lien Indenture Documents, regardless of any knowledge thereof which the First Lien Collateral INMETCO Agent or any First Lien Claimholderthe INMETCO Facility Lenders, or any of them, may have or be otherwise charged with.;
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a))2.4, the First Lien ClaimholdersINMETCO Facility Lenders, the First Lien Collateral INMETCO Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent, the Trustee or any other Second Lien ClaimholderIndenture Holder, without incurring any liabilities to the Second Lien Collateral Agents Agent, the Trustee or any other Second Lien Claimholder Indenture Holder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent, the Trustee or any other Second Lien Claimholder Indenture Holder is affected, impaired or extinguished thereby) do any one or more of the following:
(1A) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations INMETCO Facility Claims or any Lien on any First Lien INMETCO Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Issuer or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsINMETCO Facility Claims, without any restriction as to the amount, tenor or terms of any such increase or extensionextension so long as the maximum aggregate principal amount of INMETCO Facility Claims described in clause (a) of the definition thereof does not exceed the Maximum Credit Facility Principal Amount) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral INMETCO Agent or any of the other First Lien ClaimholdersINMETCO Facility Lenders, the First Lien Obligations INMETCO Facility Claims or any of the First Lien Loan INMETCO Facility Documents;
(2B) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien INMETCO Collateral or any liability of the Company Issuer or any other Grantor to any of the First Lien Claimholders INMETCO Facility Lenders or the First Lien Collateral INMETCO Agent, or any liability incurred directly or indirectly in respect thereof;
(3C) settle or compromise any First Lien Obligation INMETCO Facility Claim or any other liability of the Company Issuer or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsINMETCO Facility Claims) in any manner or order;
(D) enter into or amend any INMETCO Facility Document in order to create or acquire additional collateral for the INMETCO Facility Claims, to create and perfect security interests in and Liens on collateral and to increase and enhance the exercise of remedies thereunder and take actions in furtherance of the foregoing; and
(4E) exercise or delay in or refrain from exercising any right or remedy against the Company Issuer or any other Grantor or any other Person or any securitysecurity provided thereby, and elect any remedy and otherwise deal freely with the CompanyIssuer, any other Grantor or any First Lien other Person or any INMETCO Collateral and any security and any guarantor or any liability of the Company Issuer, any other Grantor or any other Grantor Person to the First Lien Claimholders INMETCO Facility Lenders or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself itself, the Trustee and each the other applicable Second Lien ClaimholderIndenture Holders, also agrees that the First Lien Claimholders INMETCO Facility Lenders and the First Lien Collateral INMETCO Agent shall not have any no liability to the Second Lien Collateral Agents Agent, the Trustee or any such Second Lien Claimholdersother Indenture Holder, and the Second Lien Collateral AgentsAgent, each on behalf of itself itself, the Trustee and each the other applicable Second Lien ClaimholderIndenture Holders, hereby waives any claim against any First Lien Claimholder INMETCO Facility Lender or the First Lien Collateral Agent INMETCO Agent, arising out of any and all actions which the First Lien Claimholders INMETCO Facility Lenders or the First Lien Collateral INMETCO Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents INMETCO Facility Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
INMETCO Facility Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. INMETCO Collateral (but only so long as such foreclosure, sale, liquidation or other disposition is conducted in accordance with Section 3.1); and
(iv) The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderitself, agree that the First Lien Claimholders Trustee and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateralother Indenture Holders, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Indenture (Horsehead Holding Corp)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor the Guarantors or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors Guarantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on in any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other GrantorGuarantor, or any liability incurred directly or indirectly in respect thereof (including including, without limitation, any increase in or extension of the First Lien ObligationsSenior Lender Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Senior Lenders, the Senior Lender Claims or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company Borrower or any other Grantor Guarantor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the Company Borrower or any other Grantor Guarantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including including, without limitation, the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any Guarantor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Borrower and the Senior Lender Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor Guarantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.;
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Senior Agent, arising out of any and all actions which the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien the Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral ABL Agent or any of them the other ABL Secured Parties or of the Collateral Agent or the Noteholder Secured Parties to enforce any provision of this Intercreditor Agreement or any First Lien Loan Document of the ABL Documents or Noteholder Documents, as the case may be, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentBorrower, or by any noncompliance by any Person with the terms, provisions and covenants of this Intercreditor Agreement, any of the First Lien Loan ABL Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien ABL Agent or any of the other ABL Secured Parties or the Collateral Agent or any First Lien Claimholder, or any of them, the Noteholder Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrowers under the ABL Documents and the other Grantors rights of the Noteholder Secured Parties under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Noteholder Documents), the First Lien Claimholders, the First Lien Collateral ABL Agent and any of them the other ABL Secured Parties may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderNoteholder Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Intercreditor Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Noteholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations ABL Debt or any Lien on any First Lien ABL Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorBorrower, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsABL Debt, without any restriction as to the amount, tenor or terms of any such increase or extension, and including addition of Vector Tobacco Inc. and any other Affiliate of the Issuer as a “Borrower” under and as defined in the ABL Loan Agreement) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral ABL Agent or any of the other First Lien ClaimholdersABL Secured Parties, the First Lien Obligations ABL Debt or any of the First Lien ABL Documents; except that the ABL Agent and the ABL Secured Parties may not consent to any amendment, modification or waiver to the ABL Documents that:
(A) results in the sum of (1) the aggregate principal amount of loans outstanding under the ABL Documents, plus (2) the unused portion of the revolving commitments under the ABL Documents, plus (3) the aggregate face amount of all letters of credit issued or deemed issued and outstanding under the ABL Documents plus (4) the Cash Management Obligations plus the Hedging Obligations (in the case of each of the foregoing, as determined after giving effect to such amendment, modification or waiver) exceeding $120,000,000,
(B) increase the “Applicable Margins” or similar component of the interest rate under the ABL Loan DocumentsAgreement in a manner that would result in the total yield on the ABL Date to exceed by more than two (2%) percent per annum the total yield on the ABL Debt as in effect on the date hereof (excluding increases resulting from the accrual or payment of interest at the default rate),
(C) modify or add any covenant or event of default under the ABL Documents that directly restricts any Borrower from making mandatory payments of the Noteholder Debt that would otherwise be permitted under the ABL Documents (as in effect on the date hereof),
(D) contractually subordinates the Liens of the ABL Secured Parties to any other debt of the Borrowers except as permitted herein or in the ABL Documents (as in effect on the date hereof), or
(E) contravene the provisions of this Intercreditor Agreement;
(2ii) until the Discharge of Priority Debt, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien ABL Collateral or any liability of any Borrower to the Company ABL Agent or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agentother ABL Secured Parties, or any liability incurred directly or indirectly in respect thereofthereof in accordance with the terms hereof;
(3iii) settle or compromise any First Lien Obligation of the ABL Debt or any other liability of the Company or any other Grantor Borrower or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsABL Debt) in any manner or order, but subject however to the terms of this Intercreditor Agreement; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Borrower or any First Lien ABL Collateral and any security and any guarantor or any liability of any Borrower to any of the Company or any other Grantor to the First Lien Claimholders ABL Secured Parties or any liability incurred directly or indirectly in respect thereof, but subject however to the terms of this Intercreditor Agreement.
(c) Except as otherwise expressly provided herein, Each of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders Agent and the First Lien Collateral ABL Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Collateral or any other similar rights a junior secured creditor may have under applicable lawlaw with respect to the ABL Collateral.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
No Waiver of Lien Priorities. (a) No right of the any First Lien Claimholders, Secured Party or the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Pledgor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Pledgors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.3(b)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorPledgor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount (subject to Section 5.3(a)), tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Pledgor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor Pledgor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor security or any other Person Pledgor or any securityother Person, and elect any remedy and otherwise deal freely with the Company, any other Grantor Pledgor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor Pledgor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Party, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (iPCS, INC)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company either Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which any First Lien Claimholder, the First Lien Collateral Agent or any First Lien Claimholder, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrowers and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company either Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided, that any such increase in the First Lien Obligations shall not increase the sum of the First Lien Obligations to an amount in excess of the First Lien Cap Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company either Borrower or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company either Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company either Borrower or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Companyeither Borrower, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company either Borrower or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation appraisal or other similar statutory right that may otherwise be available under applicable law with respect to the any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Second Lien Intercreditor Agreement (Turning Point Brands, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Credit Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Senior Lender Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Credit Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which that the First Lien Collateral Credit Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Credit Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsSenior Lender Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Credit Agent or any of the other First Lien ClaimholdersSenior Lenders, the First Lien Obligations Senior Lender Claims or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Credit Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Senior Lender Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Credit Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Credit Agent, arising out of any and all actions which that the First Lien Claimholders Senior Lenders or the First Lien Collateral Credit Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Credit Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights that a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Representatives, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Claimholder, First Lien Representative or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the any First Lien Representative, any First Lien Collateral Agent or any First Lien Claimholder, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Representatives, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Representative, any First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Claimholders, the First Lien Representatives or the First Lien Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, also agrees that the First Lien Claimholders Claimholders, the First Lien Representatives and the First Lien Collateral Agent Agents shall not have any no liability to the such Second Lien Representative, such Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the such Second Lien Representative and such Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, hereby waives any claim against any First Lien Claimholder Claimholder, any First Lien Representative or the any First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Claimholders, any First Lien Representative or the any First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, agree agrees that the First Lien Claimholders Claimholders, the First Lien Representatives and the First Lien Collateral Agent do not Agents have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Priority Lien Claimholders, Secured Parties or the First Parity Lien Collateral Agent Secured Parties or any of them to enforce any provision of this Agreement Agreement, any Priority Lien Document or any First Parity Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Priority Lien Claimholder Secured Party or the First any Parity Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Priority Lien Loan Documents, any of the Parity Lien Documents or any of the Second Junior Lien Documents, regardless of any knowledge thereof which the First any Priority Lien Collateral Agent Secured Party or any First Parity Lien ClaimholderSecured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Priority Lien Loan Documents and subject to the provisions of Section 5.3(a5.03(a)), the First Priority Lien Claimholders, the First Lien Collateral Agent Secured Parties and any of them may, at any time and from time to time in accordance with the First Priority Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second any Parity Lien Collateral Agents Secured Party or any other Second Junior Lien ClaimholderSecured Party, without incurring any liabilities to the Second any Parity Lien Collateral Agents Secured Party or any other Second Junior Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second any Parity Lien Collateral Agents Secured Party or any other Second Junior Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Priority Lien Obligations or any Lien on any First Lien Shared Collateral or guaranty of any of the First Priority Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Priority Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First any Priority Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Party, the First Priority Lien Obligations or any of the First Priority Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Shared Collateral or any liability of the Company or any other Grantor to any of the First Priority Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Priority Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Priority Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Shared Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Priority Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Following the Discharge of Priority Lien Obligations but prior to the Discharge of Parity Lien Obligations, without in any way limiting the generality of clause (a) above (but subject to the rights of the Company and the other Grantors under the Parity Lien Documents and subject to the provisions of Section 5.03(b)), the Parity Lien Secured Parties and any of them may, at any time and from time to time in accordance with the Parity Lien Documents and/or applicable law, without the consent of, or notice to, any Junior Lien Secured Party, without incurring any liabilities to any Junior Lien Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any Junior Lien Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Parity Lien Obligations or any Lien on any Shared Collateral or guaranty of any of the Parity Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Parity Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by any of the Parity Lien Secured Parties, the Parity Lien Obligations or any of the Parity Lien Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the Shared Collateral or any liability of the Company or any other Grantor to any of the Parity Lien Secured Parties, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any Parity Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Parity Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any Shared Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the Parity Lien Secured Parties or any liability incurred directly or indirectly in respect thereof.
(d) Except as otherwise expressly provided herein, each of the Second Parity Lien Collateral Agents, each on behalf of itself Secured Parties and each other applicable Second the Junior Lien Claimholder, also Secured Parties agrees that the First Priority Lien Claimholders and the First Lien Collateral Agent Secured Parties shall not have any no liability to the Second any such Parity Lien Collateral Agents Secured Parties or any such Second Junior Lien ClaimholdersSecured Parties, and each of the Second Parity Lien Collateral Agents, each on behalf of itself Secured Parties and each other applicable Second the Junior Lien Claimholder, Secured Parties hereby waives any claim against any First Priority Lien Claimholder or the First Lien Collateral Agent Secured Party arising out of any and all actions which the First Priority Lien Claimholders Secured Parties or the First Lien Collateral Agent any of them may take or permit or omit to take with respect to:
(1) the First Priority Lien Loan Documents (other than this Agreement);
(2) the collection of the First Priority Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Shared Collateral. The Second Each of the Parity Lien Collateral Agents, each on behalf of itself Secured Parties and each other applicable Second the Junior Lien Claimholder, agree Secured Parties agrees that the First Priority Lien Claimholders and the First Lien Collateral Agent do not Secured Parties have any no duty to them in respect of the maintenance or preservation of the First Lien Shared Collateral, the First Priority Lien Obligations or otherwise.
(d) . Until the Discharge of First Priority Lien Obligations, each of the Second Parity Lien Collateral Agents, each on behalf of itself Secured Parties and each other applicable Second the Junior Lien Claimholder, agree Secured Parties agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any Shared Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Indenture (CONSOL Mining Corp)
No Waiver of Lien Priorities. (a) No right of the any First Lien Claimholders, Secured Party or the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Pledgor Party or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Notes Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Pledgor Parties under the First Lien Loan Documents and subject to the provisions of Section 5.3(a5.3(b)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorPledgor Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount (subject to Section 5.3(a)), tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Pledgor Party to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor Pledgor Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor security or any other Person Pledgor Party or any securityother Person, and elect any remedy and otherwise deal freely with the Company, any other Grantor Pledgor Party or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor Pledgor Party to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Party, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, hereby waives any claim against any First Lien Claimholder Secured Party or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Revel Entertainment Group, LLC)
No Waiver of Lien Priorities. (a) No To the fullest extent permitted under applicable law, no right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Administrative Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Obligor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Administrative Agent or any First Lien Claimholderthe other Secured Parties, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Obligors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First Lien Claimholders, the First Lien Collateral Agent Secured Parties and any of them them, may, to the fullest extent permitted under applicable law, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Obligor or issue, guaranty or obtain letters of credit for account of any Obligor or otherwise extend credit to any Obligor, in any amount (subject to the limits set forth in the Indenture) and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase (subject to the limits set forth in the Indenture or any other Noteholder Document) or alter, the terms of any of the First Lien Obligations Lender Claims or any Lien on any First Lien Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorObligors, or any liability incurred directly or indirectly in respect thereof (including any increase in (subject to the limits set forth in the Indenture or any other Noteholder Document) or extension of the First Lien ObligationsLender Claims, without any restriction as to the amount, tenor or terms of any such increase (subject to the limits set forth in the Indenture or extensionany other Noteholder Document) or extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Secured Parties, the Lender Claims or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2iii) subject, in the case of Pledged Collateral, to Section 5.5, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Lender Collateral or any liability of any Obligor to the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First Lien Obligation Lender Claim or any other liability of the Company or any other Grantor Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsLender Claims) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company any Obligor or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Obligors and the Lender Collateral and any security and any guarantor or any liability of the Company or any other Grantor Obligor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.;
(vi) release or discharge any Lender Claims or any guaranty thereof or any agreement or obligation of any Obligor or any other person or entity with respect thereto;
(vii) take or fail to take any Lender Lien or any other collateral security for any Lender Claims or take or fail to take any action which may be necessary or appropriate to ensure that any Lender Lien or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any property subject to any Lien are applied to the payment of any Lender Claim or any other obligation secured thereby; or
(viii) release, discharge or permit the lapse of any or all Lender Liens or any other Liens upon any property at any time securing any Lender Claims;
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees agrees, to the fullest extent permitted under applicable law, that the First Lien Claimholders and the First Lien Collateral Agent no Secured Party shall not have any liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other the Noteholders, to the fullest extent permitted under applicable Second Lien Claimholderlaw, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Secured Party, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent such Secured Parties may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien the Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each the Noteholders, agrees that neither the Administrative Agent nor any other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Party shall have any duty to them them, express or implied, fiduciary or otherwise, in respect of the maintenance or preservation of the First Lien Lender Collateral, the First Lien Obligations Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Mens Apparel Guild in California Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them Senior Secured Party to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Credit Party or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSenior Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Documents or any of the Second Lien Junior Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Senior Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph clause (a) (but subject to the rights of the Company and the other Grantors Credit Parties under the First Lien Loan Credit Documents and subject to the provisions of Section 5.3(a)9.1), the First Lien Claimholderseach Senior Secured Party, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderJunior Secured Party, without incurring any liabilities liability to the Second Lien Collateral Agents or any other Second Lien Claimholder Junior Secured Party and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder Junior Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations or Senior Claim, any Lien on in respect of any First Lien Collateral or Senior Collateral, any guaranty of any of the First Lien Obligations Senior Claim, or any liability of the Company or any other Grantor, or any liability Credit Party incurred directly or indirectly in respect thereof of any of the foregoing (including any increase in or extension of the First Lien ObligationsSenior Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner the Senior Claims, any Liens held by the First Lien Senior Collateral Agent Agent, the Senior Secured Parties, or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Senior Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Collateral or any liability of the Company any Credit Party to any Senior Agent or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSenior Secured Party, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Claim or any other liability of the Company or any other Grantor Credit Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsSenior Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any Credit Party or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyCredit Parties, any other Grantor or any First Lien the Senior Collateral and any security and security, any guarantor or any liability of the Company or any other Grantor Credit Party to the First Lien Claimholders any Senior Secured Party, or any liability incurred directly or indirectly indirectly, in respect thereof.of the foregoing;
(c) Except as otherwise expressly provided hereinEach Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, also agrees that the First Lien Claimholders and the First Lien Collateral Agent no Senior Secured Party shall not have any duty or liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersJunior Secured Party, and the Second Lien Collateral Agentssuch Junior Agent, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral Agent each Senior Secured Party arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent any Senior Secured Party may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Claims, (3iii) the foreclosure upon, or sale, liquidation or other disposition of, the Senior Collateral, (iv) the release of any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of any Senior Collateral, or (v) the maintenance or preservation of the First Lien Senior Collateral, the First Lien Obligations Senior Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsEach Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, agree in respect of any Collateral agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral Applicable Law or any other similar rights a junior secured creditor may have under applicable lawApplicable Law in respect of such Collateral.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Representatives, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Claimholder, First Lien Representative or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the any First Lien Representative, First Lien Collateral Agent or any First Lien Claimholder, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Representatives, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Representative, any First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided, that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness constituting principal under the First Lien Loan Documents and the face amount of any letters of credit issued and outstanding under the First Lien Loan Documents to an amount in excess of the First Lien Cap Amount;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Claimholders, the First Lien Representatives or the First Lien Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, also agrees that the First Lien Claimholders Claimholders, the First Lien Representatives and the First Lien Collateral Agent Agents shall not have any liability to the such Second Lien Representative, such Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the such Second Lien Representative and such Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, hereby waives any claim against any First Lien Claimholder Claimholder, any First Lien Representative or the any First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Claimholders, any First Lien Representative or the any First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, agree agrees that the First Lien Claimholders Claimholders, the First Lien Representatives and the First Lien Collateral Agent Agents do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the each Second Lien Representative and each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien ClaimholderClaimholder represented by it, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Second Lien Intercreditor Agreement
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor GenTek Obligor or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Junior Lender Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or the Senior Lenders, or any of them, may have or be otherwise charged with. No right of the Junior Lenders, the Junior Agent or any First Lien Claimholderof them to enforce any provision of this Agreement shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any GenTek Obligor or by any act or failure to act by any Junior Lender or the Junior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the Junior Lender Documents or any of the Senior Lender Documents, regardless of any knowledge thereof which the Junior Agent or the Junior Lenders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors GenTek Obligors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Junior Agent or any other Second Lien ClaimholderJunior Lender, without incurring any liabilities to the Second Lien Collateral Agents Junior Agent or any other Second Lien Claimholder Junior Lender and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Junior Agent or any other Second Lien Claimholder Junior Lender is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on in any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorGenTek Obligor, or any liability incurred directly or indirectly in respect thereof (including including, without limitation, any increase in or extension of the First Lien ObligationsSenior Lender Claims), without any restriction as to the amount, tenor or terms of any such increase or extension) extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Senior Agent or any of the other First Lien ClaimholdersSenior Lenders, any of the First Lien Obligations Senior Lender Claims or any of the First Lien Loan Senior Lender Documents; provided that the sum of the principal amount of Revolving Loans and reimbursement obligations in respect of Letters of Credit shall not exceed at any time the Maximum Senior Lender Claim Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company or any other Grantor GenTek Obligor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of any GenTek Obligor (other than the Company or any other Grantor Junior Lender Claims) or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including including, without limitation, any of the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any GenTek Obligor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with each GenTek Obligor and the Company, any other Grantor or any First Lien Senior Lender Collateral and any security and any guarantor or any liability of any GenTek Obligor to any of the Company Senior Lenders or any other Grantor to the First Lien Claimholders Senior Agent or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinThe Senior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Senior Lenders, also agrees that the First Lien Claimholders Junior Agent and the First Lien Collateral Agent Junior Lenders shall not have any no liability (other than pursuant to the Second Lien Collateral Agents terms here of and applicable Requirements of Law) to the Senior Agent or any such Second Lien ClaimholdersSenior Lender, and, subject to the terms here of and applicable Requirements of Law, the Second Lien Collateral AgentsSenior Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Senior Lenders, hereby waives any claim against the Junior Agent or any First Lien Claimholder or the First Lien Collateral Agent Junior Lender, arising out of any and all actions which any of the First Lien Claimholders Junior Lenders or the First Lien Collateral Junior Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Junior Lender Documents, (other than this Agreement);
(2ii) the collection of any of the First Junior Lender Claims, or (iii) the release of any Lien Obligations; orin respect of any Shared Collateral. The Senior Agent, on behalf of itself and the Senior Lenders, agrees that the Junior Lenders and the Junior Agent have no duty to them in respect of the maintenance or preservation of the Junior Lender Collateral, the Junior Lender Claims or otherwise other than as expressly set forth herein.
(3d) The Junior Agent, on behalf of itself and the Junior Lenders, also agrees that the Senior Lenders and the Senior Agent shall have no liability(other than pursuant to the terms hereof and applicable Requirements of Law) to the Junior Agent or any Junior Lender, and, subject to the terms here of and applicable Requirements of Law, the Junior Agent, on behalf of itself and the Junior Lenders, hereby waives any claim against any Senior Lender or the Senior Agent, arising out of any and all actions which any of the Senior Lenders or the Senior Agent may take or permit or omit to take with respect to: (i) the Senior Lender Documents, (ii) the collection of any of the Senior Lender Claims, (iii) the foreclosure upon, or sale, liquidation or other disposition of, any First of the Senior Lender Collateral or the Shared Collateral, or (iv) the release of any Lien in respect of any Shared Collateral. The Second Lien Collateral AgentsJunior Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Junior Lenders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwiseotherwise other than as expressly set forth herein.
(de) Until the Discharge of First Lien ObligationsThe Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Junior Lenders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Gentek Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Senior Claimholders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Senior Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Senior Claimholder or the First Lien Collateral Senior Agent, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Senior Loan Documents or any of the Second Junior Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or any First Lien ClaimholderSenior Claimholders, or any of them, may have or be otherwise charged with.
(b) No right of Junior Claimholders, Junior Agent or any of them to enforce any provision of this Agreement or any Junior Lien Documents shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any U.S. Grantor or by any act or failure to act by any Junior Claimholder or Junior Agent, or by any noncompliance by any person with the terms, provisions, and covenants of this Agreement, any of the Junior Lien Documents or any of the Senior Loan Documents, regardless of any knowledge thereof which Junior Agent or Junior Claimholders, or any of them, may have or be otherwise charged with.
(c) Without in any way limiting the generality of the foregoing paragraph Section 7.3(a) (but subject to the any rights of the Company and the other Grantors under the First Lien Senior Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Senior Claimholders, the First Lien Collateral Senior Agent and any of them may, at any time and from time to time in accordance with the First Lien Senior Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Junior Agent or any other Second Lien ClaimholderJunior Claimholders, without incurring any liabilities to the Second Lien Collateral Agents Junior Agent or any other Second Lien Claimholder Junior Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Junior Agent or any other Second Lien Claimholder Junior Claimholders is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Junior Agent:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Senior Lien Obligations or any Lien on any First Lien Senior Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Senior Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by Senior Agent or any Senior Claimholder, the First Senior Lien Collateral Agent Obligations, or any of the other First Senior Loan Documents (it being understood that if any such change or increase results in the principal amount of such Senior Lien ClaimholdersObligations exceeding the Maximum Senior Amount, the First Lien Obligations or any amounts that are in excess of the First Maximum Senior Amount shall not constitute “Senior Lien Loan DocumentsObligations” for purposes of this Agreement);
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Collateral or any liability of the Company or any other Grantor to any of the First Lien Senior Claimholders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Senior Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Senior Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Senior Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Senior Claimholders or any liability incurred directly or indirectly in respect thereof.
(cd) Without in any way limiting the generality of Section 7.3(b) (but subject to any rights of Grantors under the Junior Lien Documents and subject to the provisions of Section 2.3(c) and Section 5.3(b) and the other provisions of this Agreement), Junior Claimholders, Junior Agent and any of them may, at any time and from time to time in accordance with the Junior Lien Documents and/or applicable law, without the consent of, or notice to, Senior Agent or any Senior Claimholder, without incurring any liabilities to Senior Agent or any Senior Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of Senior Agent or any Senior Claimholders is affected, impaired, or extinguished thereby) do any one or more of the following without the prior written consent of Senior Agent:
(i) change the manner, place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase, or alter, the terms of any of the Junior Lien Obligations or any Lien on any Junior Collateral or guarantee thereof or any liability of any U.S. Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Junior Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify, or supplement in any manner any Liens held by Junior Agent or any Junior Claimholders, the Junior Lien Obligations, or any of the Junior Lien Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the Junior Collateral or any liability of any U.S. Grantor to Junior Claimholders or Junior Agent, or any liability incurred directly or indirectly in respect thereof;
(iii) settle or compromise any Junior Lien Obligation or any other liability of any U.S. Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Junior Lien Obligations) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or remedy against any U.S. Grantor or any other person, elect any remedy and otherwise deal freely with any U.S. Grantor or any Junior Collateral and any security and any guarantor or any liability of any U.S. Grantor to Junior Claimholders or any liability incurred directly or indirectly in respect thereof.
(e) Except as otherwise expressly provided hereinin this Agreement, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Junior Agent also agrees that the First Lien Senior Claimholders and the First Lien Collateral Senior Agent shall not have any no liability to the Second Lien Collateral Agents Junior Agent or any such Second Lien Junior Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Junior Agent hereby waives any claim against any First Lien Senior Claimholder or the First Lien Collateral Agent Senior Agent, arising out of any and all actions which the First Lien Senior Claimholders or Senior Agent may, pursuant to and not in contravention of the First Lien Collateral Agent may take or terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Senior Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Senior Lien Obligations; or
(3iii) the foreclosure uponenforcement, or sale, liquidation liquidation, foreclosure upon or other disposition of, or the failure to enforce, sell, liquidate, foreclose upon or otherwise dispose of, any First Lien Senior Collateral. The Second Lien Collateral AgentsExcept as otherwise provided in this Agreement, each on behalf of itself and each other applicable Second Lien Claimholder, agree Junior Agent agrees that the First Lien no Senior Claimholders and the First Lien Collateral Senior Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Senior Collateral, the First Senior Lien Obligations Obligations, or otherwise.
(df) Until the Discharge of First Senior Lien Obligations, Junior Agent and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Junior Claimholders agree not to assert and hereby waiveswaive, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Junior Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersTerm Agent, the First Lien Collateral Agent other Term Secured Parties, or any of them to enforce any provision of this Agreement or any First Lien Loan Term Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Parent or any other Grantor or by any act or failure to act by the Term Agent or any First Lien Claimholder or the First Lien Collateral Agentother Term Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Term Documents or any of the Second Lien ABL Documents, regardless of any knowledge thereof which the First Lien Collateral Term Agent or any First Lien Claimholderthe other Term Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Parent and the other Grantors under the First Lien Loan Term Documents and subject to the other provisions of Section 5.3(a)this Agreement), the First Lien ClaimholdersTerm Agent, the First Lien Collateral Agent other Term Secured Parties, and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Term Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents ABL Agent or any other Second Lien ClaimholderABL Secured Party, without incurring any liabilities to the Second Lien Collateral Agents ABL Agent or any other Second Lien Claimholder ABL Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents ABL Agent or any other Second Lien Claimholder ABL Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2A) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof and applicable law) and in any order any part of the First Lien Term Priority Collateral or any liability of the Company Parent or any other Grantor to any of the First Lien Claimholders Term Agent or the First Lien Collateral Agentother Term Secured Parties, or any liability incurred directly or indirectly in respect thereof;
(3B) settle or compromise any First Lien Term Obligation or any other liability of the Company Parent or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(4C) exercise or delay in or refrain from exercising any right or remedy against the Company Parent or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyParent, any other Grantor or any First Lien Term Priority Collateral and any security and any guarantor or any liability of the Company Parent or any other Grantor to the First Lien Claimholders Term Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe ABL Agent, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, also agrees that the First Lien Claimholders Term Agent and the First Lien Collateral Agent other Term Secured Parties shall not have any no liability to the Second Lien Collateral Agents ABL Agent or any such Second Lien Claimholdersother ABL Secured Party, and the Second Lien Collateral AgentsABL Agent, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, hereby waives any claim against the Term Agent and any First Lien Claimholder or the First Lien Collateral Agent other Term Secured Party, arising out of any and all actions which the First Lien Claimholders Term Agent or the First Lien Collateral Agent other Term Secured Parties may take or permit or omit to take with respect to:
(1A) the First Lien Loan Term Documents (other than this Agreement);
(2B) the collection of the First Lien Term Obligations; or
(3C) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien CollateralTerm Priority Collateral in accordance with this Agreement and applicable law. The Second Lien Collateral AgentsABL Agent, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, agree agrees that the First Lien Claimholders Term Agent and the First Lien Collateral Agent do not other Term Secured Parties have any no duty to them the ABL Agent or the other ABL Secured Parties in respect of the maintenance or preservation of the First Lien Term Priority Collateral, the First Lien Term Obligations or otherwise, except as otherwise provided in this Agreement.
(div) Until the Discharge of First Lien ObligationsThe ABL Agent, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, Collateral Agents or the First Lien Collateral Agent or any of them Claimholders to enforce any provision of this Agreement or any First Lien Loan Credit Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien such Collateral Agent or Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Credit Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Agents or any First Lien Claimholderthe Claimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Credit Documents and subject to the provisions of Section 5.3(a)Sections 2.3, 2.4 and 5.3), the First Lien Claimholders, Collateral Agents and the First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the First Lien Loan Credit Documents to which they are party and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderCollateral Agent or Claimholders, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder such Persons and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
: (1) change 1)change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Agents or any rights or remedies under any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Credit Documents;
; (2) sell2)sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral (except to the extent provided in this Agreement) or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
; (3) settle 3)settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderorder that is not inconsistent with the terms of this Agreement; and
and (4) exercise 4)exercise or delay in or refrain from exercising any right or remedy against the Company any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.Grantor. 28
(c) Except as otherwise expressly provided hereinUntil the Discharge of Priming Senior Priority Obligations, the Second Lien Junior Priority Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Junior Priority Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent Secured Party or any of them to enforce any provision of this Agreement or any First Lien Loan Lease/Purchase Facilities Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Tensar or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Lease/Purchase Facilities Documents or any of the Second Lien Commodities Purchase Facility Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Secured Party or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Tensar and the other Grantors under the First Lien Loan Lease/Purchase Facilities Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent Secured Party and any of them may, may at any time and from time to time in accordance with the First Lien Loan Lease/Purchase Facilities Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Secured Party or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Secured Party or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Secured Party or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase Increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Tensar or any other Grantor, Grantor or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Secured Party or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Lease/Purchase Facilities Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the Financing Obligations under the First Lien Lease/Purchase Facilities Documents to an amount in excess of the Cap Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company Tensar or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSecured Party, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company Tensar or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Tensar or any other Grantor or any other Person security or any securityother Person, and elect any remedy and otherwise deal freely with the CompanyTensar, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Tensar or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsSecured Party, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent Secured Party shall not have any no liability to the Second Lien Collateral Agents Secured Party or any such Second Lien Claimholders, and the Second Lien Collateral AgentsSecured Party, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim (other than a claim for breach of contract) against any First Lien Claimholder or the First Lien Collateral Agent Secured Party, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent Secured Party may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Lease/Purchase Facilities Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsSecured Party, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Party have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsSecured Party, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right (other than a claim for breach of contract) that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or of any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Obligor or by any act or failure to act by any First Lien Claimholder or the any First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Financing Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Agents or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (a) (but subject to the rights of the Company and the other Grantors First Lien Obligors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1) make loans and advances to any Obligor or issue, provide, guaranty or obtain First Lien Letters of Credit for the account of any Obligor or otherwise extend credit to any Obligor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(2) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, alter the terms of of, any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorObligor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(23) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Obligor to any of the First Lien Claimholders or the any First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(34) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and;
(45) exercise or delay in or refrain from exercising any right or remedy against the Company any Obligor or any other Grantor security or any other Person or with respect to any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor Obligor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor Obligor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof; and
(6) release or discharge any First Lien Obligation or any guaranty thereof or any agreement or obligation of any Obligor or any other Person or entity with respect thereto.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the each Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the related Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: First Lien Credit Agreement (Isos Acquisition Corp.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Agent Senior Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor of the Guarantors or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral any Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Senior Agents or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors Guarantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Agent Senior Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on in any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any Guarantor or any other GrantorPerson, or any liability incurred directly or indirectly in respect thereof (including including, without limitation, any increase in or extension of any of the First Lien ObligationsSenior Lender Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by any of the First Lien Collateral Agent Senior Lenders or any of the other First Lien ClaimholdersSenior Agents, any of the First Lien Obligations Senior Lender Claims or any of the First Lien Loan Senior Lender Documents);
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company Borrower, any Guarantor or any other Grantor Person to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral AgentSenior Agents, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the Company Borrower, any Guarantor or any other Grantor Person or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including including, without limitation, any of the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any Guarantor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any Guarantor and any other Grantor or Person and any First Lien Senior Lender Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor Guarantor to any Senior Agent or any of the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Agent Senior Agents shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent any Senior Agent, arising out of any and all actions which any of the First Lien Claimholders Senior Lenders or the First Lien Collateral any Senior Agent may take or permit or omit to take with respect to:
: (1i) any of the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of any of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien of the Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Agent do not Senior Agents have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwise.
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Second Lien Trustee:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations Obligations, or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the outstanding principal amount under the First Lien Credit Agreement to an amount in excess of the First Lien Cap;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Trustee also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Trustee hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Trustee agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Obligations, or otherwise.
(d) Until the Discharge of First Lien Priority Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Trustee agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Saratoga Resources Inc /Tx)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Credit Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Credit Documents or any of the Second Lien Credit Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Credit Documents and subject to the provisions of Section 5.3(a5.3(b)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Credit Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Credit Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Credit Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.; and
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (American Reprographics CO)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Senior Lender Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsSenior Lender Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Senior Agent or any of the other First Lien ClaimholdersSenior Lenders, the First Lien Obligations Senior Lender Claims or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company Borrower or any other Grantor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.;
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Senior Agent, arising out of any and all actions which the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Senior Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Reptron Electronics Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Representatives, the Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Senior Loan Document or Third Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Claimholder, Representative, Collateral Agent, Agent or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Senior Loan Documents or any of the Second Third Lien Loan Documents, regardless of any knowledge thereof which the First Lien any Representative, Collateral Agent or any First Lien ClaimholderAgent, Claimholder or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Senior Loan Documents and the Third Lien Loan Documents and subject to the provisions of Section 5.3(a6.3(a)), the First Lien Senior Claimholders, the First Lien Senior Representatives, the Senior Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Senior Loan Documents and/or applicable law, without the consent of, or notice to, the Second Third Lien Representative, the Third Lien Collateral Agents Agent or any other Second Third Lien Claimholder, without incurring any liabilities to the Second Third Lien Representative, the Third Lien Collateral Agents Agent or any other Second Third Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Third Lien Representative, the Third Lien Collateral Agents Agent or any other Second Third Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Senior Obligations or any Lien on any First Lien Senior Collateral or guaranty of any of the First Lien Senior Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Senior Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien any Senior Representative, any Senior Collateral Agent or any of the other First Lien Senior Claimholders, the First Lien Senior Obligations or any of the First Lien Senior Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Senior Claimholders, the Senior Representatives or the First Lien Senior Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Senior Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Senior Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Senior Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Senior Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Third Lien Representative and Third Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second the Third Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders Senior Claimholders, the Senior Representatives and the First Lien Senior Collateral Agent Agents shall not have any liability to the Second Third Lien Collateral Agents Agent or the Third Lien Representative or any such Second Third Lien Claimholders, and each of the Second Third Lien Collateral AgentsAgent and Third Lien Representative, each on behalf of itself and each other applicable Second the Third Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder Senior Claimholder, any Senior Representative or the First Lien any Senior Collateral Agent arising out of any and all actions which the First Lien Claimholders Senior Claimholders, any Senior Representative or the First Lien any Senior Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Senior Loan Documents (other than this Agreement);
(2) the collection of the First Lien Senior Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Senior Collateral. The Second Third Lien Representative and the Third Lien Collateral AgentsAgent, each on behalf of itself and each other applicable Second Third Lien ClaimholderClaimholder represented by it, agree and each Third Lien Claimholder agrees that the First Lien Claimholders Senior Claimholders, the Senior Representatives and the First Lien Senior Collateral Agent Agents do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Senior Obligations or otherwise.
(d) Until the Discharge of First Lien Senior Obligations, each of the Second Third Lien Representative and the Third Lien Collateral AgentsAgent, each on behalf of itself and the Third Lien Claimholders, and each other applicable Second Third Lien Claimholder, agree Claimholder agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any Senior Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Third Lien Subordination and Intercreditor Agreement
No Waiver of Lien Priorities. (a) No right of any First Lien Secured Party or the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor Loan Party or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors Loan Parties under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)) hereof), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Inverness Medical Innovations Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them the other First Lien Secured Parties to enforce any provision of this Agreement or any of the First Lien Loan Document Documents shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Agent or the any other First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any of the other First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First Lien Claimholders, the First Lien Collateral Agent and any of them the other First Lien Secured Parties may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations Debt or any Lien on any First Second Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsDebt, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations Debt or any of the First Lien Documents; except that Second Lien Secured Parties shall not be deemed to consent to any amendment, modification or waiver to the First Lien Documents that:
(A) result in the sum of (i) the aggregate principal amount of loans outstanding under the First Lien Documents, plus (ii) the unused portion of the revolving commitments under the First Lien Documents, plus (iii) the aggregate face amount of all letters of credit issued or deemed issued and outstanding under the First Lien Documents (in the case of each of the foregoing clauses (i), (ii) and (iii), as determined after giving effect to such amendment, modification or waiver) exceeding the Maximum Priority First Lien Debt,
(B) increase the “Applicable Margins” or similar component of the interest rate under the First Lien Loan DocumentsAgreement in a manner that would result in the total yield on the First Lien Date to exceed by more than two (2%) percent per annum the total yield on the First Lien Debt as in effect on the date hereof (excluding increases resulting from the accrual or payment of interest at the default rate),
(C) modify or add any covenant or event of default under the First Lien Documents that directly restricts any Borrower or its subsidiaries from making payments of the Second Lien Debt that would otherwise be permitted under the First Lien Documents as in effect on the date hereof,
(D) contractually subordinate the Liens of the First Lien Secured Parties to any other debt of Grantors,
(E) extend the stated maturity date of the Indebtedness under the First Lien Loan Agreement to a date beyond the stated maturity date of the indebtedness under the Second Lien Note Indenture (as in effect on the date hereof or as hereafter extended), it being understood that any date on which any mandatory prepayment has to be made shall not be constructed to constitute a “stated maturity date” under the Second Lien Note Indenture,
(F) contravene the provisions of this Agreement;
(2G) remove or release assets subject to the Lien of the Second Lien Documents, except to the extent that a release of such Lien is permitted or required by Section 3.5 or consented to by the Second Lien Collateral Agent or the Second Lien Secured Parties and provided that there is a corresponding release of the Liens securing the applicable First Lien Obligations;
(H) impose duties on any Second Lien Agent without its prior written consent;
(I) permit other Liens on the Second Lien Collateral not permitted under the terms of the Second Lien Documents or Section 6; or
(J) are prejudicial to the interests of the Second Lien Secured Parties to a greater extent than the First Lien Secured Parties.
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Second Lien Collateral or any liability of the Company or any other Grantor to the First Lien Agent or any of the other First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereofthereof in accordance with the terms hereof;
(3iii) settle or compromise any of the First Lien Obligation Debt or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsDebt) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Second Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinThe Second Lien Collateral Agent, for itself and on behalf of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderSecured Parties, also agrees that the First Lien Claimholders Agent and the other First Lien Collateral Agent Secured Parties shall not have no liability with respect to any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Agent or any of the other First Lien Collateral Agent Secured Parties may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Debt or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Second Lien Collateral. The Second Lien Collateral AgentsAgent, each for itself and on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree agrees that the First Lien Claimholders Secured Parties and the other First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Second Lien Collateral, the First Lien Obligations Debt or otherwise.
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Second Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersRevolving Facility Secured Parties, the First Lien Collateral Revolving Facility Security Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Revolving Facility Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company any Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Revolving Facility Secured Party or the First Lien Collateral Revolving Facility Security Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Revolving Facility Documents or any of the Second Lien Term Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Revolving Facility Security Agent or any First Lien Claimholderthe Revolving Facility Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company any Borrower and the other Grantors under the First Lien Loan Revolving Facility Documents and subject to the provisions of Section 5.3(a3.4(c)), the First Lien ClaimholdersRevolving Facility Secured Parties, the First Lien Collateral Revolving Facility Security Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Revolving Facility Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Term Loan Security Agent or any other Second Lien ClaimholderTerm Loan Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Term Loan Security Agent or any other Second Lien Claimholder Term Loan Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Term Loan Security Agent or any other Second Lien Claimholder Term Loan Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(2) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Revolving Facility Obligations or any Lien on any Revolving Facility First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company any Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Revolving Facility Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens on the Revolving Facility First Lien Collateral held by the First Lien Collateral Revolving Facility Security Agent or any of the other First Lien ClaimholdersRevolving Facility Secured Parties, the First Lien Revolving Facility Obligations or any of the First Lien Loan Revolving Facility Documents;
(23) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the Revolving Facility First Lien Collateral or any liability of the Company any Borrower or any other Grantor to any of the First Lien Claimholders Revolving Facility Secured Parties or the First Lien Collateral Revolving Facility Security Agent, or any liability incurred directly or indirectly in respect thereof;
(34) settle or compromise any First Lien Revolving Facility Obligation or any other liability of the Company any Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(45) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Companyany Borrower, any other Grantor or any Revolving Facility First Lien Collateral and any security and any guarantor or any liability of the Company any Borrower or any other Grantor to the First Lien Claimholders Revolving Facility Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe Term Loan Security Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Secured Parties, also agrees that the First Lien Claimholders Revolving Facility Secured Parties and the First Lien Collateral Revolving Facility Security Agent shall not have any no liability to the Second Lien Collateral Agents Term Loan Security Agent or any such Second Lien ClaimholdersTerm Loan Secured Party, and the Second Lien Collateral AgentsTerm Loan Security Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Secured Parties, hereby waives any claim against any First Lien Claimholder Revolving Facility Secured Party or the First Lien Collateral Agent Revolving Facility Security Agent, arising out of any and all actions which the First Lien Claimholders Revolving Facility Secured Parties or the First Lien Collateral Revolving Facility Security Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Revolving Facility Documents (other than this Agreement);
(2) the collection of the First Lien Revolving Facility Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any Revolving Facility First Lien Collateral. The Second Lien Collateral AgentsTerm Loan Security Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Secured Parties, agree agrees that the First Lien Claimholders Revolving Facility Secured Parties and the First Lien Collateral Revolving Facility Security Agent do not have any no duty to them the Term Loan Security Agent or the Term Loan Secured Parties in respect of the maintenance or preservation of the Revolving Facility First Lien Collateral, the First Lien Revolving Facility Obligations or otherwise.
(div) Until the Discharge of First Lien ObligationsThe Term Loan Security Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Term Loan Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Revolving Facility First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First First-Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor or by any act or failure to act by any First First-Lien Claimholder Creditor or the First First-Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First First-Lien Loan Documents or any of the Second Second-Lien Note Documents, regardless of any knowledge thereof which the First First-Lien Collateral Agent or any First the First-Lien ClaimholderCreditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors under the First First-Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First First-Lien ClaimholdersCreditors, the First First-Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First First-Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Second-Lien Collateral Agents Trustee or any other Second Second-Lien ClaimholderCreditor, without incurring any liabilities to the Second Second-Lien Collateral Agents Trustee or any other Second Second-Lien Claimholder Creditor and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Second-Lien Collateral Agents Trustee or any other Second Second-Lien Claimholder Creditors is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First First-Lien Obligations or any Lien on any First First-Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First First-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First First-Lien Collateral Agent or any of the other First First-Lien ClaimholdersCreditors, the First First-Lien Obligations or any of the First First-Lien Loan Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First First-Lien Collateral or any liability of the Company Borrower or any other Grantor to any of the First First-Lien Claimholders Creditors or the First First-Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First First-Lien Obligation or any other liability of the Company Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First First-Lien Obligations) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any other Grantor or any other Person or with respect to any security, and elect any remedy and otherwise deal freely with the CompanyBorrower, any other Grantor or any First First-Lien Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor to the First First-Lien Claimholders Creditors or any liability incurred directly or indirectly in respect thereof; and
(vi) release or discharge any First-Lien Obligation or any guaranty thereof or any agreement or obligation of any Grantor or any other person or entity with respect thereto.
(c) Except as otherwise expressly provided hereinThe Second-Lien Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second the Second-Lien ClaimholderCreditors, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Second-Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
Creditor (1) the First Lien Loan Documents (other than this Agreement);
(2) the collection by its acceptance of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect benefits of the maintenance or preservation of the First Second-Lien CollateralNote Documents), the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersTerm Loan Secured Parties, the First Lien Collateral Term Loan Security Agent or any of them to enforce any provision of this Agreement or any First Lien Term Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company any Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Term Loan Secured Party or the First Lien Collateral Term Loan Security Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Term Loan Documents or any of the Second Lien Revolving Facility Documents, regardless of any knowledge thereof which the First Lien Collateral Term Loan Security Agent or any First Lien Claimholderthe Term Loan Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company each Borrower and the other Grantors under the First Lien Term Loan Documents and subject to the provisions of Section 5.3(a2.4(c)), the First Lien ClaimholdersTerm Loan Secured Parties, the First Lien Collateral Term Loan Security Agent and any of them may, at any time and from time to time in accordance with the First Lien Term Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Revolving Facility Security Agent or any other Second Lien ClaimholderRevolving Facility Secured Party, without incurring any liabilities to the Second Lien Collateral Agents Revolving Facility Security Agent or any other Second Lien Claimholder Revolving Facility Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Revolving Facility Security Agent or any other Second Lien Claimholder Revolving Facility Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(2) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Term Loan Obligations or any Lien on any Term Loan First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company any of any Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Term Loan Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens on the Term Loan First Lien Collateral held by the First Lien Collateral Term Loan Security Agent or any of the other First Lien ClaimholdersTerm Loan Secured Parties, the First Lien Term Loan Obligations or any of the First Lien Term Loan Documents;
(23) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the Term Loan First Lien Collateral or any liability of the Company any Borrower or any other Grantor to any of the First Lien Claimholders Term Loan Secured Parties or the First Lien Collateral Term Loan Security Agent, or any liability incurred directly or indirectly in respect thereof;
(34) settle or compromise any First Lien Term Loan Obligation or any other liability of the Company any Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(45) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Companyany Borrower, any other Grantor or any Term Loan First Lien Collateral and any security and any guarantor or any liability of the Company any Borrower or any other Grantor to the First Lien Claimholders Term Loan Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe Revolving Facility Security Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Revolving Facility Secured Parties, also agrees that the First Lien Claimholders Term Loan Secured Parties and the First Lien Collateral Term Loan Security Agent shall not have any no liability to the Second Lien Collateral Agents Revolving Facility Security Agent or any such Second Lien ClaimholdersRevolving Facility Secured Party, and the Second Lien Collateral AgentsRevolving Facility Security Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe Revolving Facility Secured Parties, hereby waives any claim against any First Lien Claimholder Term Loan Secured Party or the First Lien Collateral Agent Term Loan Security Agent, arising out of any and all actions which the First Lien Claimholders Term Loan Secured Parties or the First Lien Collateral Term Loan Security Agent may take or permit or omit to take with respect to:
(1) the First Lien Term Loan Documents (other than this Agreement);
(2) the collection of the First Lien Term Loan Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any Term Loan First Lien Collateral. The Second Lien Collateral AgentsExcept as otherwise required by this Agreement, each the Revolving Facility Security Agent, on behalf of itself and each other applicable Second Lien Claimholderthe Revolving Facility Secured Parties, agree agrees that the First Lien Claimholders Term Loan Secured Parties and the First Lien Collateral Term Loan Security Agent do not have any no duty to them the Revolving Facility Security Agent or the Revolving Facility Secured Parties in respect of the maintenance or preservation of the Term Loan First Lien Collateral, the First Lien Term Loan Obligations or otherwise.
(div) Until the Discharge of First Lien ObligationsThe Revolving Facility Security Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Revolving Facility Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersTerm Secured Parties, the First Lien Term Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Term Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Term Secured Party or the First Lien Term Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Term Documents, any of the ABL Documents or any of the Second Lien Notes Documents, regardless of any knowledge thereof which the First Lien Term Collateral Agent or any First Lien Claimholderthe Term Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Term Documents and subject to the provisions of Section 5.3(a2.4(c)), the First Lien ClaimholdersTerm Secured Parties, the First Lien Term Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Term Documents and/or applicable law, without the consent of, or notice to, the Second Lien ABL Collateral Agents Agent, any ABL Secured Party, the Notes Collateral Agent or any other Second Lien ClaimholderNotes Secured Party, without incurring any liabilities to the Second Lien ABL Collateral Agents Agent, any ABL Secured Party, the Notes Collateral Agent or any other Second Lien Claimholder Notes Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien ABL Collateral Agents Agent, any ABL Secured Party, the Notes Collateral Agent or any other Second Lien Claimholder Notes Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) : sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the First Lien TL Priority Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Term Secured Parties or the First Lien Term Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) ; settle or compromise any First Lien Term Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof thereof; and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien TL Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Term Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe ABL Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders ABL Secured Parties and the First Lien Notes Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersAgent, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Notes Secured Parties, also agree that the Term Secured Parties and the Term Collateral Agent shall have no liability to the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party, and the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives waive any claim against any First Lien Claimholder Term Secured Party or the First Lien Term Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders Term Secured Parties or the First Lien Term Collateral Agent may take or permit or omit to take with respect to:
(1) : the First Lien Loan Term Documents (other than this Agreement);
(2) ; the collection of the First Lien Term Obligations; or
(3) or the foreclosure upon, or sale, liquidation or other disposition of, any First Lien TL Priority Collateral. The Second Lien ABL Collateral AgentsAgent, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the First Lien Claimholders Term Secured Parties and the First Lien Term Collateral Agent do not have any no duty to them the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of the First Lien TL Priority Collateral, the First Lien Term Obligations or otherwise.
(div) Until the Discharge of First Lien ObligationsThe Notes Collateral Agent, the Second Lien Collateral Agents, each on behalf of itself and each the Notes Secured Parties, also agrees that the ABL Secured Parties and the ABL Collateral Agent shall have no liability to the Notes Collateral Agent or any Notes Secured Party, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives any claim against any ABL Secured Party or the ABL Collateral Agent, arising out of any and all actions which the ABL Secured Parties or the ABL Collateral Agent may take or permit or omit to take with respect to: the ABL Documents (other applicable Second Lien Claimholderthan this Agreement); the collection of the ABL Obligations; or the foreclosure upon, or sale, liquidation or other disposition of, any TL Priority Collateral. The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that the ABL Secured Parties and the ABL Collateral Agent have no duty to the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of the TL Priority Collateral, the ABL Obligations or otherwise.
(v) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties agree not to assert and hereby waiveswaive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the TL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
(vi) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees not to assert and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the TL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Second Lien Trustee:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations Obligations, or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the outstanding principal amount under the First Lien Credit Agreement and, without duplication, the then extant Letter of Credit Usage to an amount in excess of the First Lien Cap;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Trustee also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Trustee hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Trustee agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Obligations, or otherwise.
(d) Until the Discharge of First Lien Priority Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Trustee agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them Senior Secured Party to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Credit Party or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSenior Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Documents or any of the Second Lien Junior Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Senior Secured Party may have or be otherwise charged with.
(b) . Without in any way limiting the generality of the foregoing paragraph clause (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)a) (except as set forth in any Senior Document), the First Lien Claimholderseach Senior Secured Party, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderJunior Secured Party, without incurring any liabilities liability to the Second Lien Collateral Agents or any other Second Lien Claimholder Junior Secured Party and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder Junior Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) following except as otherwise expressly prohibited or conditioned herein: change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any Senior Claim, any Lien in respect of the First Lien Obligations or Credit Agreement Collateral, any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations Senior Claim, or any liability of the Company or any other Grantor, or any liability Credit Party incurred directly or indirectly in respect thereof of any of the foregoing (including any increase in or extension of the First Lien ObligationsSenior Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner the Senior Claims, any Liens held by the First Lien Collateral Agent Senior Agent, the Senior Secured Parties, or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Senior Documents;
(2) ; sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Credit Agreement Collateral or any liability of any Credit Party to the Company Senior Agent or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSenior Secured Party, or any liability incurred directly or indirectly in respect thereof;
(3) ; settle or compromise any First Lien Obligation Senior Claim or any other liability of the Company or any other Grantor Credit Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsSenior Claims) in any manner or order; and
(4) and exercise or delay in or refrain from exercising any right or remedy against the Company any security or any Credit Party or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyCredit Parties, any other Grantor or any First Lien the Credit Agreement Collateral and any security and security, any guarantor or any liability of the Company or any other Grantor Credit Party to the First Lien Claimholders any Senior Secured Party, or any liability incurred directly or indirectly indirectly, in respect thereof.
(c) Except as otherwise expressly provided hereinof the foregoing; The Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, also agrees that the First Lien Claimholders and the First Lien Collateral Agent no Senior Secured Party shall not have any duty or liability to the Second Lien Collateral Agents or any such Second Lien ClaimholdersJunior Secured Party, and the Second Lien Collateral AgentsJunior Agent, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral Agent each Senior Secured Party arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent any Senior Secured Party may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Claims, (3iii) the foreclosure upon, or sale, liquidation or other disposition of, the Credit Agreement Collateral, (iv) the release of any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of any Credit Agreement Collateral, or (v) the maintenance or preservation of the First Lien Credit Agreement Collateral, the First Lien Obligations Senior Claims or otherwise.
(d) Until the Discharge of First Lien Obligations; and The Junior Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderJunior Secured Party, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral Requirement of Law or any other similar rights a junior secured creditor may have under applicable lawRequirement of Law in respect of any Credit Agreement Collateral.
Appears in 1 contract
Samples: Credit Agreement (WCI Steel, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, Agents or the First Lien Collateral Agent or any of them other Claimholders to enforce any provision of this Agreement or any First Lien ABL Loan Document or Senior Secured Notes Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder such Agents or the First Lien Collateral Agent, Claimholders or by any noncompliance by any Person with the terms, provisions and covenants of (i) this Agreement, (ii) any of the First Lien ABL Loan Documents or (iii) any of the Second Lien Senior Secured Notes Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Agents or any First Lien Claimholderthe ABL Claimholders or the Senior Secured Notes Claimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Grantors under the ABL Loan Documents and the Senior Secured Notes Documents and except as otherwise expressly provided in this Agreement), the Agents and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the First Lien ABL Loan Documents and the Senior Secured Notes Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents any other Agent or any other Second Lien ClaimholderClaimholder (as applicable), without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder such Persons and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Agents or any rights or remedies under any of the other First Lien Claimholders, ABL Loan Documents or the First Lien Obligations or any of the First Lien Loan Senior Secured Notes Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral (except to the extent provided in this Agreement) or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor therefore or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderorder that is not inconsistent with the terms of this Agreement; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereofGrantor.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersLenders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company First Lien Borrower or any other Grantor the First Lien Guarantors or by any act or failure to act by any First Lien Claimholder Lender or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderLenders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph any other provision hereof, (but subject to the rights of the Company First Lien Borrower and the other Grantors First Lien Guarantors under the First Lien Loan Documents and subject to the provisions proviso set forth in the definition of Section 5.3(a)the term “First Lien Financing Agreement”), the First Lien ClaimholdersLenders, the First Lien Collateral Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, of the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderLender, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Lender is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersTerm Representatives, the First Lien Collateral Agent other Term Secured Parties, or any of them to enforce any provision of this Agreement or any First Lien Loan Term Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company any Borrower or any other Grantor or by any act or failure to act by the Designated Term Representative or any First Lien Claimholder or the First Lien Collateral Agentother Term Secured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Term Documents or any of the Second Lien ABL Documents, regardless of any knowledge thereof which the First Lien Collateral Agent Designated Term Representative or any First Lien Claimholderthe other Term Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company any Borrower and the other Grantors under the First Lien Loan Term Documents and subject to the other provisions of Section 5.3(a)this Agreement), the First Lien ClaimholdersTerm Representatives, the First Lien Collateral Agent other Term Secured Parties, and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Term Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents ABL Agent or any other Second Lien ClaimholderABL Secured Party, without incurring any liabilities to the Second Lien Collateral Agents ABL Agent or any other Second Lien Claimholder ABL Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents ABL Agent or any other Second Lien Claimholder ABL Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2A) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof and applicable law) and in any order any part of the First Lien Term Priority Collateral or any liability of the Company any Borrower or any other Grantor to any of the First Lien Claimholders Term Representatives or the First Lien Collateral Agentother Term Secured Parties, or any liability incurred directly or indirectly in respect thereof;
(3B) settle or compromise any First Lien Term Obligation or any other liability of the Company any Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(4C) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Companyany Borrower, any other Grantor or any First Lien Term Priority Collateral and any security and any guarantor or any liability of the Company any Borrower or any other Grantor to the First Lien Claimholders Term Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe ABL Agent, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, also agrees that the First Lien Claimholders Term Representatives and the First Lien Collateral Agent other Term Secured Parties shall not have any no liability to the Second Lien Collateral Agents ABL Agent or any such Second Lien Claimholdersother ABL Secured Party, and the Second Lien Collateral AgentsABL Agent, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, hereby waives any claim against the Term Representatives and any First Lien Claimholder or the First Lien Collateral Agent other Term Secured Party, arising out of any and all actions which the First Lien Claimholders Term Representatives or the First Lien Collateral Agent other Term Secured Parties may take or permit or omit to take with respect to:
(1A) the First Lien Loan Term Documents (other than this Agreement);
(2B) the collection of the First Lien Term Obligations; or
(3C) the foreclosure upon, or sale, liquidation or other disposition Disposition of, any First Lien CollateralTerm Priority Collateral in accordance with this Agreement and applicable law. The Second Lien Collateral AgentsABL Agent, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, agree agrees that the First Lien Claimholders Term Representatives and the First Lien Collateral Agent do not other Term Secured Parties have any no duty to them the ABL Agent or the other ABL Secured Parties in respect of the maintenance or preservation of the First Lien Term Priority Collateral, the First Lien Term Obligations or otherwise, except as otherwise provided in this Agreement.
(div) Until the Discharge of First Lien ObligationsThe ABL Agent, the Second Lien Collateral Agents, each on behalf of itself and each the other applicable Second Lien ClaimholderABL Secured Parties, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No To the fullest extent permitted under applicable law, no right of the First Lien ClaimholdersPriority Lenders, the First Lien Collateral Administrative Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Obligor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentPriority Lender, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Administrative Agent or any the other First Lien ClaimholderPriority Lenders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Obligors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First Lien Claimholders, the First Lien Collateral Agent Priority Lenders and any of them them, may, to the fullest extent permitted under applicable law, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities liability to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Obligor or issue, guaranty or obtain letters of credit for account of any Obligor or otherwise extend credit to any Obligor, in any amount (subject to the limits set forth in the Indenture) and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase (subject to the limits set forth in the Indenture or any other Noteholder Document) or alter, the terms of any of the First Lien Obligations Priority Claims or any First Priority Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorObligors, or any liability incurred directly or indirectly in respect thereof (including any increase in (subject to the limits set forth in the Indenture or any other Noteholder Document) or extension of the First Lien ObligationsPriority Claims, without any restriction as to the amount, tenor or terms of any such increase (subject to the limits set forth in the Indenture or extensionany other Noteholder Document) or extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the holders of First Lien Collateral Agent Priority Claims, the First Priority Claims or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Priority Collateral or any liability of the Company or any other Grantor Obligor to any of the First Lien Claimholders or the First Lien Collateral AgentPriority Lenders, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First Lien Obligation Priority Claim or any other liability of the Company or any other Grantor Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums sum by whomsoever paid and however realized to any liability (including the First Lien ObligationsPriority Claims) in any manner or order; and
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company any Obligor or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any Obligors and the First Lien Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor Obligor to the holders of First Lien Claimholders Priority Claims or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees agrees, to the fullest extent permitted under applicable law, that the no First Lien Claimholders and the First Lien Collateral Agent Priority Lender shall not have any liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other the Noteholders, to the fullest extent permitted under applicable Second Lien Claimholderlaw, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Priority Lender, arising out of any and all actions action which the such holders of First Lien Claimholders or the First Lien Collateral Agent Priority Claims may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) to the foreclosure upon, or sale, liquidation or other disposition of, any the First Lien Priority Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each the Noteholders, agrees that neither the Administrative Agent nor any other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not Priority Lender shall have any duty to them them, express or implied, fiduciary or otherwise, in respect of the maintenance or preservation of the First Lien Priority Collateral, the First Lien Obligations Priority Claims or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Integrated Alarm Services Group Inc)
No Waiver of Lien Priorities. (a) No right of the First Senior Lien Claimholders, the First Senior Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Senior Lien Loan Note Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Issuer or any other Grantor or by any act or failure to act by any First Senior Lien Claimholder or the First Senior Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Senior Lien Loan Note Documents or any of the Second Lien Credit Documents, regardless of any knowledge thereof which the First Senior Lien Collateral Agent or any First the Senior Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Issuer and the other Grantors under the First Senior Lien Loan Note Documents and subject to the provisions of Section 5.3(a)), the First Senior Lien Claimholders, the First Senior Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Senior Lien Loan Note Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is Claimholders are affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend (but beyond the scheduled final maturity thereof) the time of payment of, or amend, renew, exchange, increase increase, supplement or alter, the terms of any of the First Senior Lien Obligations or any Lien on any First Senior Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Issuer or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Senior Lien ObligationsObligations or issuance by Issuer of any secured Indebtedness permitted under the Senior Lien Note Agreements, without any restriction as to the amount, tenor or terms of any such increase or extensionextension or issuance, all of which shall constitute Senior Lien Obligations) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Senior Lien Collateral Agent or any of the other First Senior Lien Claimholders, the First Senior Lien Obligations or any of the First Senior Lien Loan Note Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Senior Lien Collateral or any liability of the Company Issuer or any other Grantor to any of the First Senior Lien Claimholders or the First Senior Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Senior Lien Obligation or any other liability of the Company Issuer or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Senior Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Issuer or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyIssuer, any other Grantor or any First Senior Lien Collateral and any security and any guarantor or any liability of the Company Issuer or any other Grantor to the First Senior Lien Claimholders or any liability incurred directly or indirectly in respect thereof., in any order, at any time, or from time to time;
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders also agrees agree that the First Senior Lien Claimholders and the First Senior Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders hereby waives waive any claim against any First Senior Lien Claimholder or the First Senior Lien Collateral Agent Agent, arising out of any and all actions which the First Senior Lien Claimholders or the First Senior Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Senior Lien Loan Documents Note Documents, (other than this Agreement);
(2ii) the collection of the First Senior Lien Obligations; or
, (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Senior Lien Collateral, or (iv) the exercise of any other rights or remedies of the Senior Lien Claimholders whatsoever. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders agree that the First Senior Lien Claimholders and the First Senior Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Senior Lien Collateral, the First Senior Lien Obligations or otherwise.; and
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders agree not to assert and hereby waiveswaive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation valuation, one-action, antideficiency or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law. In addition, to the extent applicable, the Second Lien Claimholders also waive (i) all rights and defenses that are or may become available to the Second Lien Claimholders by reason of Sections 2787, inclusive, and Section 3433 of the California Civil Code or similar applicable law , (ii) all rights and benefits under Section 2809 of the California Civil Code and any similar applicable law , (iii) the benefit of any statute of limitations affecting the Senior Lien Obligations or the provisions hereof and (iv) all rights and benefits under Section 359.5 of the California Code of Civil Procedure and any similar applicable laws .
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (FriendFinder Networks Inc.)
No Waiver of Lien Priorities. (ai) No right of the First Lien ClaimholdersTerm Loan Secured Parties, the First Lien Collateral Term Loan Security Agent or any of them to enforce any provision of this Agreement or any First Lien Term Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company any Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Term Loan Secured Party or the First Lien Collateral Term Loan Security Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Term Loan Documents or any of the Second Lien ABL Facility Documents, regardless of any knowledge thereof which the First Lien Collateral Term Loan Security Agent or any First Lien Claimholderthe Term Loan Secured Parties, or any of them, may have or be otherwise charged with.
(bii) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company each Borrower and the other Grantors under the First Lien Term Loan Documents and subject to the provisions of Section 5.3(a2.4(c)), the First Lien ClaimholdersTerm Loan Secured Parties, the First Lien Collateral Term Loan Security Agent and any of them may, at any time and from time to time in accordance with the First Lien Term Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents ABL Facility Security Agent or any other Second Lien ClaimholderABL Facility Secured Party, without incurring any liabilities to the Second Lien Collateral Agents ABL Facility Security Agent or any other Second Lien Claimholder ABL Facility Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents ABL Facility Security Agent or any other Second Lien Claimholder ABL Facility Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(2) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Term Loan Obligations or any Lien on any Term Loan First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company any of any Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Term Loan Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens on the Term Loan First Lien Collateral held by the First Lien Collateral Term Loan Security Agent or any of the other First Lien ClaimholdersTerm Loan Secured Parties, the First Lien Term Loan Obligations or any of the First Lien Term Loan Documents;
(23) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the Term Loan First Lien Collateral or any liability of the Company any Borrower or any other Grantor to any of the First Lien Claimholders Term Loan Secured Parties or the First Lien Collateral Term Loan Security Agent, or any liability incurred directly or indirectly in respect thereof;
(34) settle or compromise any First Lien Term Loan Obligation or any other liability of the Company any Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or orderthereof; and
(45) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Companyany Borrower, any other Grantor or any Term Loan First Lien Collateral and any security and any guarantor or any liability of the Company any Borrower or any other Grantor to the First Lien Claimholders Term Loan Secured Parties or any liability incurred directly or indirectly in respect thereof.
(ciii) Except as otherwise expressly provided hereinThe ABL Facility Security Agent, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Facility Secured Parties, also agrees that the First Lien Claimholders Term Loan Secured Parties and the First Lien Collateral Term Loan Security Agent shall not have any no liability to the Second Lien Collateral Agents ABL Facility Security Agent or any such Second Lien ClaimholdersABL Facility Secured Party, and the Second Lien Collateral AgentsABL Facility Security Agent, each on behalf of itself and each other applicable Second Lien Claimholderthe ABL Facility Secured Parties, hereby waives any claim against any First Lien Claimholder Term Loan Secured Party or the First Lien Collateral Agent Term Loan Security Agent, arising out of any and all actions which the First Lien Claimholders Term Loan Secured Parties or the First Lien Collateral Term Loan Security Agent may take or permit or omit to take with respect to:
(1) the First Lien Term Loan Documents (other than this Agreement);
(2) the collection of the First Lien Term Loan Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any Term Loan First Lien Collateral. The Second Lien Collateral AgentsExcept as otherwise required by this Agreement, each the ABL Facility Security Agent, on behalf of itself and the ABL Facility Secured Parties, and each other applicable Second Lien ClaimholderABL Facility Secured Party (by its acceptance of the benefit of the ABL Facility Documents), agree agrees that the First Lien Claimholders Term Loan Secured Parties and the First Lien Collateral Term Loan Security Agent do not have any no duty to them the ABL Facility Security Agent or the ABL Facility Secured Parties in respect of the maintenance or preservation of the Term Loan First Lien Collateral, the First Lien Term Loan Obligations or otherwise.
(div) Until the Discharge of First Lien ObligationsThe ABL Facility Security Agent, the Second Lien Collateral Agents, each on behalf of itself and the ABL Facility Secured Parties, and each other applicable Second Lien ClaimholderABL Facility Secured Party (by its acceptance of the benefit of the ABL Facility Documents), agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them the other First Lien Secured Parties to enforce any provision of this Agreement or any of the First Lien Loan Document Documents shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Agent or the any other First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any of the other First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First Lien Claimholders, the First Lien Collateral Agent and any of them the other First Lien Secured Parties may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the any Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations Debt or any Lien on any First Second Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsDebt, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, refinance, replace, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations Debt or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Second Lien Collateral or any liability of the Company or any other Grantor to the First Lien Agent or any of the other First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereofthereof in accordance with the terms hereof;
(3iii) settle or compromise any of the First Lien Obligation Debt or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsDebt) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Second Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinEach Second Lien Agent, for itself and on behalf of the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien ClaimholderSecured Parties for which it acts, also agrees that the First Lien Claimholders Agent and the other First Lien Collateral Agent Secured Parties shall not have no liability with respect to any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Agent or any of the other First Lien Collateral Agent Secured Parties may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Debt or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Second Lien Collateral. The Each Second Lien Collateral AgentsAgent, each for itself and on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties for which it acts, agree agrees that the First Lien Claimholders Secured Parties and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Second Lien Collateral, the First Lien Obligations Debt or otherwise.
(d) Until the Discharge Each Second Lien Agent agrees, for itself and on behalf of First Lien Obligations, the Second Lien Collateral AgentsSecured Parties for which it acts, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Second Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor the Guarantors or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors Guarantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on in any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other GrantorGuarantor, or any liability incurred directly or indirectly in respect thereof (including including, without limitation, any increase in or extension of the First Lien ObligationsSenior Lender Claims, without any restriction as to the amount, tenor or terms of any such increase or extension) extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Senior Lenders, the Senior Lender Claims or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company Borrower or any other Grantor Guarantor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the Company Borrower or any other Grantor Guarantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including including, without limitation, the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any Guarantor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Borrower and the Senior Lender Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor Guarantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof.;
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Senior Agent, arising out of any and all actions which the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien the Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Borrower or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Borrower under the First Lien Loan Documents and subject to the other provisions of herein, including Section 5.3(a3.1(b)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, Borrower or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided that (x) any such increase in the First Lien Obligations shall not increase the amount of First Lien Obligations constituting principal under the First Lien Credit Agreement to an amount in excess of the First Lien Cap, except for Inadvertent Excess Advances not exceeding an aggregate amount of $7,000,000 outstanding at any time and (y) the scheduled termination date under the First Lien Credit Agreement (i.e., the “Facility Termination Date” and the “Commitment Termination Date” referred to therein) shall not be extended to a date later than September 14, 2010;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Borrower to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor Borrower or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Borrower or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor Borrower to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided hereinwith respect to actions taken by any of the First Lien Agent or First Lien Claimholders in contravention of the provisions of this Agreement, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien Claimholders, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim all claims against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement)Documents;
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Except as otherwise provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until Unless otherwise specifically permitted herein, until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No To the fullest extent permitted under applicable law, no right of the First Lien ClaimholdersSecured Parties, the First Lien Collateral Administrative Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Obligor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Administrative Agent or any First Lien Claimholderthe other Secured Parties, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Obligors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Documents), the First Lien Claimholders, the First Lien Collateral Agent Secured Parties and any of them them, may, to the fullest extent permitted under applicable law, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) make loans and advances to any Obligor or issue, guaranty or obtain letters of credit for account of any Obligor or otherwise extend credit to any Obligor, in any amount (subject to the limits set forth in the Indenture) and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;
(ii) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase (subject to the limits set forth in the Indenture) or alter, the terms of any of the First Lien Obligations Lender Claims or any Lien on any First Lien Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorObligors, or any liability incurred directly or indirectly in respect thereof (including any increase in (subject to the limits set forth in the Indenture) or extension of the First Lien ObligationsLender Claims, without any restriction as to the amount, tenor or terms of any such increase (subject to the limits set forth in the Indenture) or extension) extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Secured Parties, the Lender Claims or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2iii) subject, in the case of Pledged Collateral, to Section 5.5, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Lender Collateral or any liability of any Obligor to the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereof;
(3iv) settle or compromise any First Lien Obligation Lender Claim or any other liability of the Company or any other Grantor Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsLender Claims) in any manner or order; and;
(4v) exercise or delay in or refrain from exercising any right or remedy against the Company any Obligor or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Obligors and the Lender Collateral and any security and any guarantor or any liability of the Company or any other Grantor Obligor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.;
(vi) release or discharge any Lender Claims or any guaranty thereof or any agreement or obligation of any Obligor or any other person or entity with respect thereto;
(vii) take or fail to take any Lender Lien or any other collateral security for any Lender Claims or take or fail to take any action which may be necessary or appropriate to ensure that any Lender Lien or any other Lien upon any property is duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any property subject to any Lien are applied to the payment of any Lender Claim or any other obligation secured thereby; or
(viii) release, discharge or permit the lapse of any or all Lender Liens or any other Liens upon any property at any time securing any Lender Claims;
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees agrees, to the fullest extent permitted under applicable law, that the First Lien Claimholders and the First Lien Collateral Agent no Secured Party shall not have any liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other the Noteholders, to the fullest extent permitted under applicable Second Lien Claimholderlaw, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Secured Party, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent such Secured Parties may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien the Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each the Noteholders, agrees that neither the Administrative Agent nor any other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Party shall have any duty to them them, express or implied, fiduciary or otherwise, in respect of the maintenance or preservation of the First Lien Lender Collateral, the First Lien Obligations Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Advanstar Communications Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSecured Parties, the First Lien Representatives, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party, First Lien Representative or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the any other First Lien Representative, First Lien Collateral Agent or any First Lien ClaimholderSecured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a1.1(a)), the First Lien ClaimholdersSecured Parties, the First Lien Representatives, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Representative, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Party, without incurring any liabilities to the Second Lien Representative, the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Representative, the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the any First Lien Representative, any First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties, the First Lien Representatives or the First Lien Collateral AgentAgents, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Representative and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, also agrees that the First Lien Claimholders Secured Parties, the First Lien Representatives and the First Lien Collateral Agent Agents shall not have any no liability to the such Second Lien Representative, such Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Parties, and the such Second Lien Representative and such Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, hereby waives any claim against any First Lien Claimholder Secured Party, any First Lien Representative or the any First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Secured Parties, any First Lien Representative or the any First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Representative and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree agrees that the First Lien Claimholders Secured Parties, the First Lien Representatives and the First Lien Collateral Agent do not Agents have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Representative and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties represented by it, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any First Lien Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Second Lien Intercreditor Agreement (Ion Geophysical Corp)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them the Secured Parties (including any Collateral Agent) to enforce any provision of this Agreement or any First Lien Loan other Secured Debt Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Credit Party or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral AgentSecured Party, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien other Secured Debt Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors Credit Parties under the First Lien Loan Debt Documents and subject to the provisions of Section 5.3(a5.03(a)), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent Agent, and any of them may, at any time and from time to time in accordance with the First Lien Loan Debt Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Collateral Agents Secured Party or any other Second Third Lien ClaimholderSecured Party, without incurring any liabilities to the any Second Lien Collateral Agents Secured Party or any other Second Third Lien Claimholder Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents Secured Party or any other Second Third Lien Claimholder Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations (subject to the limitations within such definition) or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other GrantorCredit Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Agent, or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Loan Debt Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor Credit Party to any of the First Lien Claimholders or the First Lien Collateral AgentSecured Parties, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor Credit Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor Credit Party or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor Credit Party or any First Lien Collateral and any security and any guarantor Guarantor or any liability of the Company or any other Grantor Credit Party to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, the Third Lien Collateral Agent, each Second Lien Representative, on behalf of itself and the Second Lien Secured Parties represented by it and each Third Lien Representative, on behalf of itself and each other applicable Second Third Lien ClaimholderSecured Party under its Third Lien Debt Facility, also agrees that the First Lien Claimholders and the First Lien Collateral Agent Secured Parties shall not have any no liability to such Person, or any of the Second Lien Secured Parties or Third Lien Secured Parties.
(d) The Second Lien Collateral Agents or any Agent, the Third Lien Collateral Agent, such Second Lien ClaimholdersRepresentative, on behalf of itself and the Second Lien Collateral AgentsSecured Parties represented by it, and each Third Lien Representative, on behalf of itself and each other applicable Second Third Lien Claimholder, Secured Party under its Third Lien Debt Facility hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Secured Party arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent Secured Parties may take or permit or omit to take with respect to:
(1i) the First Lien Loan Debt Documents (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. .
(e) The Second Lien Collateral AgentsAgent, the Third Lien Collateral Agent, each Second Lien Representative, on behalf of itself and the Second Lien Secured Parties represented by it, and each Third Lien Representative, on behalf of itself and each other applicable Second Third Lien ClaimholderSecured Party under its Third Lien Debt Facility, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Parties have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(df) Until Solely as between the Discharge Second Lien Secured Parties and the Third Lien Secured Parties and without in any way limiting the generality of First clause (a) above (but subject to the rights of the Credit Parties under the Second Lien ObligationsDebt Documents and subject to the provisions of Section 5.03(a)), the Second Lien Secured Parties, the Second Lien Collateral AgentsAgent, and any of them may, at any time and from time to time in accordance with the Second Lien Debt Documents and/or applicable law, without the consent of, or notice to, any Third Lien Secured Party, without incurring any liabilities to any Third Lien Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any Third Lien Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Second Lien Obligations or any Lien on any Collateral or guaranty of any of the Second Lien Obligations or any liability of any Credit Party, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Second Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the Second Lien Collateral Agent, or any of the other Second Lien Secured Parties, the Second Lien Obligations or any of the Second Lien Debt Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the Collateral or any liability of any Credit Party to any of the Second Lien Secured Parties, or any liability incurred directly or indirectly in respect thereof;
(iii) settle or compromise any Second Lien Obligation or any other liability of any Credit Party or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Second Lien Obligations) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or remedy against any Credit Party or any other Person or any security, and elect any remedy and otherwise deal freely with any Credit Party or any Collateral and any security and any Guarantor or any liability of any Credit Party to the Second Lien Secured Parties or any liability incurred directly or indirectly in respect thereof.
(g) Except as otherwise expressly provided herein, the Third Lien Collateral Agent and each Third Lien Representative, on behalf of itself and each other applicable the Third Lien Secured Parties represented by it, also agrees that the Second Lien ClaimholderSecured Parties shall have no liability to such Person, agree not or any of the Third Lien Secured Parties, the Third Lien Collateral Agent and such Third Lien Representative, on behalf of itself and the Third Lien Secured Parties represented by it, hereby waives any claim against any Second Lien Secured Party arising out of any and all actions which the Second Lien Secured Parties may take or permit or omit to assert and hereby waivestake with respect to:
(i) the Second Lien Debt Documents (other than this Agreement);
(ii) the collection of the Second Lien Obligations; or
(iii) the foreclosure upon, to the fullest extent permitted by lawor sale, liquidation or other disposition of, any right Collateral.
(h) The Third Lien Collateral Agent and each Third Lien Representative, on behalf of itself and the Third Lien Secured Parties represented by it, agrees that the Second Lien Secured Parties have no duty to demandthem in respect of the maintenance or preservation of the Collateral, request, plead the Second Lien Obligations or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable lawotherwise.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any the First Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Claimholders is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents; provided that any such increase in the First Lien Obligations shall not increase the First Lien Obligations Amount in excess of the Cap Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien Claimholders, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than any such action which the First Lien Agent is specifically required by the terms of this AgreementAgreement to take, permit, or refrain from taking);
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable the Second Lien ClaimholderClaimholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Protection One Alarm Monitoring Inc)
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Representatives, the First Lien Collateral Agent Agents or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Claimholder, First Lien Representative or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the any First Lien Representative, First Lien Collateral Agent or any First Lien Claimholder, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Representatives, the First Lien Collateral Agent Agents and any of them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Representative, any Second Lien Collateral Agents Agent or any other Second Lien Claimholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1) the First Lien Loan Documents (other than this Agreement);
(2) the collection of the First Lien Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the First Lien Collateral Agent or any of them other First Lien Claimholder to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Agent or the any other First Lien Collateral AgentClaimholder, or by any noncompliance by any Person person with the terms, provisions provisions, and covenants of this Agreement, any of the First Lien Loan Documents or any of the Second Lien Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any other First Lien Claimholder, or any of them, Claimholder may have (or be otherwise charged with).
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the any rights of the Company and the other Grantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, Agent and the other First Lien Collateral Agent and any of them Claimholders may, at any time and from time to time in accordance with the First Lien Loan Documents and/or or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien Claimholder, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder is affected, impaired impaired, or extinguished thereby) do any one or more of the followingfollowing without the prior written consent of Second Lien Agent:
(1i) change the manner, place place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase increase, or alter, the terms of any of the First Lien Obligations Debt or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations guarantee thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien ObligationsDebt, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify modify, or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersClaimholder, the First Lien Obligations Debt, or any of the First Lien Loan Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company any Grantor to First Lien Agent or any other Grantor to any of the First Lien Claimholders or the First Lien Collateral AgentClaimholders, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Debt or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien ObligationsDebt) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person or any securityperson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Collateral and any security and any guarantor or any liability of the Company any Grantor to First Lien Agent or any other Grantor to the First Lien Claimholders Claimholder or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral Agents, each on behalf of itself Agent also agrees that First Lien Agent and each the other applicable First Lien Claimholders shall have no liability to Second Lien Agent or any other Second Lien Claimholder, also agrees that the First Lien Claimholders and the First Lien Collateral Agent shall not have any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Agent hereby waives any claim against First Lien Agent or any other First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Agent or the any other First Lien Collateral Agent may take or Claimholder may, pursuant to the terms hereof, take, permit or omit to take with respect to:
(1i) the First Lien Loan Documents (other than this Agreement)Documents;
(2ii) the collection of the First Lien ObligationsDebt; or
(3iii) the foreclosure upon, or sale, liquidation liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself Agent agrees that First Lien Agent and each the other applicable Second Lien Claimholder, agree that the First Lien Claimholders and the First Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations Debt, or otherwise.
(d) Until the Discharge Payment in Full of First Lien ObligationsDebt, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead plead, or otherwise assert assert, or otherwise claim the benefit of of, any marshaling, appraisal, valuation valuation, or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: Intercreditor Agreement (Nuverra Environmental Solutions, Inc.)
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Borrower or any other Grantor the Guarantors or by any act or failure to act by any First Lien Claimholder Senior Lender or the First Lien Collateral Senior Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Lender Documents or any of the Second Lien Noteholder Documents, regardless of any knowledge thereof which the First Lien Collateral Senior Agent or any First Lien Claimholderthe Senior Lenders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrower and the other Grantors Guarantors under the First Lien Loan Documents and subject to the provisions of Section 5.3(a)Senior Lender Documents), the First Lien ClaimholdersSenior Lenders, the First Lien Collateral Senior Agent and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Lien Collateral Agents Trustee or any other Second Lien ClaimholderNoteholder, without incurring any liabilities to the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder and without impairing or releasing the Lien lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Trustee or any other Second Lien Claimholder Noteholder is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, amend, increase or alter, the terms of any of the First Lien Obligations Senior Lender Claims or any Lien on in any First Lien Senior Lender Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Borrower or any other GrantorGuarantor, or any liability incurred directly or indirectly in respect thereof (including including, without limitation, any increase in or extension of the First Lien ObligationsSenior Lender Claims), without any restriction as to the amount, tenor or terms of any such increase or extension) extension or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent Senior Lenders, the Senior Lender Claims or any of the other First Lien Claimholders, the First Lien Obligations or any of the First Lien Loan Senior Lender Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Senior Lender Collateral or any liability of the Company Borrower or any other Grantor Guarantor to any of the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation Senior Lender Claim or any other liability of the Company Borrower or any other Grantor Guarantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including including, without limitation, the First Lien ObligationsSenior Lender Claims) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Borrower or any security or any Guarantor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor or any First Lien Borrower and the Senior Lender Collateral and any security and any guarantor or any liability of the Company Borrower or any other Grantor Guarantor to the First Lien Claimholders Senior Lenders or any liability incurred directly or indirectly in respect thereof; provided, however, that nothing contained in this Section 7.3(b) is intended as a waiver or modification by the Trustee or any Noteholder of the terms and conditions of the Noteholder Documents.
(c) Except as otherwise expressly provided hereinThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, also agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent shall not have any no liability to the Second Lien Collateral Agents Trustee or any such Second Lien ClaimholdersNoteholder, and the Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, hereby waives any claim against any First Lien Claimholder Senior Lender or the First Lien Collateral Agent Senior Agent, arising out of any and all actions which the First Lien Claimholders Senior Lenders or the First Lien Collateral Senior Agent may take or permit or omit to take with respect to:
: (1i) the First Lien Loan Documents Senior Lender Documents, (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
Senior Lender Claims or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien the Senior Lender Collateral. The Second Lien Collateral AgentsTrustee, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees that the First Lien Claimholders Senior Lenders and the First Lien Collateral Senior Agent do not have any no duty to them in respect of the maintenance or preservation of the First Lien Senior Lender Collateral, the First Lien Obligations Senior Lender Claims or otherwise.; and
(d) Until the Discharge of First Lien ObligationsThe Trustee, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholderthe Noteholders, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Senior Lien Claimholders, the First Senior Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Senior Lien Loan Note Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company Issuer or any other Grantor or by any act or failure to act by any First Senior Lien Claimholder or the First Senior Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Senior Lien Loan Note Documents or any of the Second Lien Credit Documents, regardless of any knowledge thereof which the First Senior Lien Collateral Agent or any First the Senior Lien ClaimholderClaimholders, or any of them, may have or be otherwise charged with.;
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Issuer and the other Grantors under the First Senior Lien Loan Note Documents and subject to the provisions of Section 5.3(a5.5(a)), the First Senior Lien Claimholders, the First Senior Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Senior Lien Loan Note Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents or any other Second Lien ClaimholderClaimholders, without incurring any liabilities to the Second Lien Collateral Agents or any other Second Lien Claimholder Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents or any other Second Lien Claimholder is Claimholders are affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend (but not beyond the scheduled final maturity thereof) the time of payment of, or amend, renew, exchange, increase increase, supplement or alter, the terms of any of the First Senior Lien Obligations or any Lien on any First Senior Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company Issuer or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Senior Lien ObligationsObligations or issuance by Issuer of any secured Indebtedness permitted under the Senior Lien Note Agreements, without any restriction as to the amount, tenor or terms of any such increase or extensionextension or issuance, all of which shall constitute Senior Lien Obligations) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Senior Lien Collateral Agent or any of the other First Senior Lien Claimholders, the First Senior Lien Obligations or any of the First Senior Lien Loan Note Documents;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Senior Lien Collateral or any liability of the Company Issuer or any other Grantor to any of the First Senior Lien Claimholders or the First Senior Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Senior Lien Obligation or any other liability of the Company Issuer or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Senior Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company Issuer or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the CompanyIssuer, any other Grantor or any First Senior Lien Collateral and any security and any guarantor or any liability of the Company Issuer or any other Grantor to the First Senior Lien Claimholders or any liability incurred directly or indirectly in respect thereof., in any order, at any time, or from time to time;
(c) Except as otherwise expressly provided herein, the The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders also agrees agree that the First Senior Lien Claimholders and the First Senior Lien Collateral Agent shall not have any no liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders hereby waives waive any claim against any First Senior Lien Claimholder or the First Senior Lien Collateral Agent Agent, arising out of any and all actions which the First Senior Lien Claimholders or the First Senior Lien Collateral Agent may take or permit or omit to take with respect to:
: (1i) the First Senior Lien Loan Documents Note Documents, (other than this Agreement);
(2ii) the collection of the First Senior Lien Obligations; or
, (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Senior Lien CollateralCollateral or (iv) the exercise of any other rights or remedies of the Senior Lien Claimholders whatsoever. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders agree that the First Senior Lien Claimholders and the First Senior Lien Collateral Agent do not have any no duty to them in respect of the maintenance or preservation of the First Senior Lien Collateral, the First Senior Lien Obligations or otherwise.; and
(d) Until the Discharge of First Lien Obligations, the The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, Claimholders agree not to assert and hereby waiveswaive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation valuation, one-action, antideficiency or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law. In addition, to the extent applicable, the Second Lien Claimholders also waive (i) all rights and defenses that are or may become available to the Second Lien Claimholders by reason of Sections 2787, inclusive, and Section 3433 of the California Civil Code or similar applicable law , (ii) all rights and benefits under Section 2809 of the California Civil Code and any similar applicable law , (iii) the benefit of any statute of limitations affecting the Senior Lien Obligations or the provisions hereof and (iv) all rights and benefits under Section 359.5 of the California Code of Civil Procedure and any similar applicable laws.
(e) No right of the Secured Note Claimholders, the Secured Note Collateral Agent or any of them to enforce any provision of this Agreement or any Secured Note Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or any other Grantor or by any act or failure to act by any Secured Note Claimholder or the Secured Note Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the Secured Note Documents or any of the Subordinated Credit Documents, regardless of any knowledge thereof which the Secured Note Collateral Agent or the Secured Note Claimholders, or any of them, may have or be otherwise charged with;
(f) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Issuer and the other Grantors under the Secured Note Documents and subject to the provisions of Section 5.4(a)), the Secured Note Claimholders, the Secured Note Collateral Agent and any of them may, at any time and from time to time in accordance with the Secured Note Documents and/or applicable law, without the consent of, or notice to, the Subordinated Claimholders, without incurring any liabilities to the Subordinated Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Subordinated Claimholders are affected, impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase, supplement or alter, the terms of any of the Secured Note Obligations or any Lien on any Secured Note Collateral or guaranty thereof or any liability of the Issuer or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Secured Note Obligations or issuance by Issuer of any secured Indebtedness permitted under the Secured Note Agreements, without any restriction as to the amount, tenor or terms of any such increase or extension or issuance, all of which shall constitute Secured Note Obligations) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the Secured Note Collateral Agent or any of the Secured Note Claimholders, the Secured Note Obligations or any of the Secured Note Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the Secured Note Collateral or any liability of the Issuer or any other Grantor to the Secured Note Claimholders or the Secured Note Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(iii) settle or compromise any Secured Note Obligation or any other liability of the Issuer or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Secured Note Obligations) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or remedy against the Issuer or any security or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Issuer, any other Grantor or any Secured Note Collateral and any security and any guarantor or any liability of the Issuer or any other Grantor to the Secured Note Claimholders or any liability incurred directly or indirectly in respect thereof, in any order, at any time, or from time to time;
(g) The Subordinated Claimholders also agree that the Secured Note Claimholders and the Secured Note Collateral Agent shall have no liability to the Subordinated Claimholders, and the Subordinated Claimholders hereby waive any claim against any Secured Note Claimholder or the Secured Note Collateral Agent, arising out of any and all actions which the Secured Note Claimholders or the Secured Note Collateral Agent may take or permit or omit to take with respect to: (i) the Secured Note Documents, (ii) the collection of the Secured Note Obligations, (iii) the foreclosure upon, or sale, liquidation or other disposition of, any Secured Note Collateral, or (iv) the exercise of any other rights or remedies of the Secured Note Claimholders whatsoever. The Subordinated Claimholders agree that the Secured Note Claimholders and the Secured Note Collateral Agent have no duty to them in respect of the maintenance or preservation of the Secured Note Collateral, the Secured Note Obligations or otherwise; and
(h) The Subordinated Claimholders agree not to assert and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation, one-action, antideficiency or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law. In addition, to the extent applicable, the Subordinated Claimholders also waive (i) all rights and defenses that are or may become available to the Subordinated Claimholders by reason of Sections 2787, inclusive, and Section 3433 of the California Civil Code or similar applicable law , (ii) all rights and benefits under Section 2809 of the California Civil Code and any similar applicable law , (iii) the benefit of any statute of limitations affecting the Secured Note Obligations or the provisions hereof and (iv) all rights and benefits under Section 359.5 of the California Code of Civil Procedure and any similar applicable laws.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (FriendFinder Networks Inc.)
No Waiver of Lien Priorities. (a) No right of the any First Lien Claimholders, Secured Party or the First Lien Collateral Agent or any of them to enforce any provision of this Agreement or any First Lien Loan Financing Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First Lien Claimholder Secured Party or the First Lien Collateral Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Financing Documents, any of the Second Lien Financing Documents or any of the Second Third Lien Financing Documents, regardless of any knowledge thereof which the First Lien Collateral Agent or any First Lien Claimholder, or any of them, Secured Parties may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First Lien Loan Financing Documents and subject to the provisions of Section Sections 5.1(a), 5.1(d), 5.3(a)) and 5.5), the First Lien ClaimholdersSecured Parties, the First Lien Collateral Agent and any of them may, at any time and from time to time in accordance with the First Lien Loan Financing Documents and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agents Agent or any other Second Lien ClaimholderSecured Parties, and without the consent of, or notice to, the Third Lien Collateral Agent or any Third Lien Secured Parties, without incurring any liabilities to the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Parties or the Third Lien Collateral Agent or any Third Lien Secured Parties, and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Collateral Agents Agent or any other Second Lien Claimholder Secured Parties, or the Third Lien Collateral Agent or any Third Lien Secured Parties is affected, impaired or extinguished thereby) do any one or more of the following:
(1i) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations, without any restriction as to the amount (subject to Section 5.3(a) hereof) tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent or any of the other First Lien ClaimholdersSecured Parties, the First Lien Obligations or any of the First Lien Financing Documents; provided that any such increase in the First Lien Obligations shall not increase the sum of the Indebtedness for borrowed money constituting principal under the First Lien Financing Documents and the face amount of any letters of credit issued under any First Lien Loan DocumentsAgreement to an amount in excess of the First Lien Cap Amount;
(2ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral or any liability of the Company or any other Grantor to any of the First Lien Claimholders Secured Parties or the First Lien Collateral Agent, or any liability incurred directly or indirectly in respect thereof;
(3iii) settle or compromise any First Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Obligations) in any manner or order; and
(4iv) exercise or delay in or refrain from exercising any right or remedy against the Company any Grantor or any security or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Grantors or any First Lien Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the First Lien Claimholders Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, and the Third Lien Collateral Agent, on behalf of itself and the Third Lien Secured Parties, each also agrees agree that the First Lien Claimholders and the First Lien Collateral Agent Secured Parties shall not have any no liability to the Second Lien Collateral Agents Agent or any such Second Lien ClaimholdersSecured Parties, or to the Third Lien Collateral Agent or any Third Lien Secured Parties, and the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, and the Third Lien Collateral Agent, on behalf of itself and the Third Lien Secured Parties, each hereby waives any claim or defense against any First Lien Claimholder Secured Party or the First Lien Collateral Agent arising out of any and all actions which the First Lien Claimholders Secured Parties or the First Lien Collateral Agent may take or permit or omit to take with respect to:
(1i) the First Lien Loan Financing Documents (other than this Agreement);
(2ii) the collection of the First Lien Obligations; or
(3iii) the foreclosure upon, or sale, liquidation or other disposition Disposition of, any First Lien Collateral, other than the obligation to conduct any sale in a commercially reasonable manner. The Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree and the Third Lien Collateral Agent, on behalf of itself and the Third Lien Secured Parties, agrees that the First Lien Claimholders and the First Lien Collateral Agent do not Secured Parties have any no duty to them in respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral AgentsAgent, each on behalf of itself and each other applicable the Second Lien ClaimholderSecured Parties, agree and the Third Lien Collateral Agent, on behalf of itself and the Third Lien Secured Parties, each hereby waives and agrees not to assert and hereby waivesassert, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshalingmarshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have with respect to the Collateral under applicable law.
(e) The foregoing provisions of this Section 7.3 shall apply, mutatis mutandis, as between the Second Lien Collateral Agent and Second Lien Secured Parties, on the one hand, and the Third Lien Collateral Agent and Third Lien Secured Parties, on the other.
Appears in 1 contract
Samples: Collateral Agency and Intercreditor Agreement (Mohegan Tribal Gaming Authority)
No Waiver of Lien Priorities. (a) No Subject to the rights of any holder of Parity Liens and Parity Lien Obligations under applicable law, no right of the First Priority Lien Claimholders, the First Lien Collateral Agent or any the holders of them the Priority Lien Obligations to enforce any provision of this Agreement or any First other Priority Lien Loan Document shall will at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor Pledgor or by any act or failure to act by the Priority Lien Agent or any First holders of Priority Lien Claimholder or the First Lien Collateral AgentObligations, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents Agreement or any of the Second Lien Secured Debt Documents, regardless of any knowledge thereof which the First Priority Lien Collateral Agent or any First the holders Priority Lien ClaimholderObligations, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject Subject to the rights of the Company any holder of Parity Liens and the other Grantors Parity Lien Obligations under applicable law or arising under the First Lien Loan Documents and subject to the provisions terms of Section 5.3(a))this Agreement, the First Priority Lien Claimholders, Agent or the First holders of the Priority Lien Collateral Agent Obligations and any of them them, may, at any time and from time to time in accordance with the First Lien Loan Documents and/or applicable lawtime, without the consent of, or notice to, the Second Parity Lien Collateral Agents Agent or any other Second holders of the Parity Lien ClaimholderObligations, without incurring any liabilities to the Second Parity Lien Collateral Agents Agent or any other Second holders of the Parity Lien Claimholder Obligations and without impairing or releasing the Lien priorities and other benefits provided in this Agreement described herein (even if any right of subrogation or other right or remedy of the Second Parity Lien Collateral Agents Agent or any other Second holders of the Parity Lien Claimholder Obligations is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase (subject to the Priority Lien Cap) or alter, the terms of any of the First Priority Lien Obligations Debt or any Priority Lien on any First Lien Collateral or guaranty of any of the First Lien Obligations thereof or any liability of the Company or any other GrantorPledgor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Priority Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension, but subject always to the Priority Lien Cap) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Priority Liens held by the First Priority Lien Collateral Agent or any of the other First holders of the Priority Lien ClaimholdersObligations, the First Priority Lien Obligations Obligations, or any of the First Priority Lien Loan Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Collateral in an enforcement of the Priority Liens (subject to the rights of any holder of Parity Liens and Parity Lien Collateral Obligations under applicable law or arising under the terms of this Agreement) or any liability of any Pledgor to the Company Priority Lien Agent or any other Grantor to any the holders of the First Priority Lien Claimholders or the First Lien Collateral AgentObligations, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Priority Lien Obligation Obligations or any other liability of the Company or any other Grantor Pledgor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Priority Lien Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company any Pledgor or any other Grantor or any other Person or any securityPerson, and elect any remedy and otherwise deal freely with the Company, any other Grantor Pledgor or any First Collateral (subject to the rights of any holder of Parity Liens and Parity Lien Collateral and any security Obligations under applicable law or arising under the terms of this Agreement) and any guarantor or any liability of the Company or any other Grantor Pledgor to the First Priority Lien Claimholders Agent or the holders of the Priority Lien Obligation or any liability incurred directly or indirectly in respect thereof.
(c) Except Subject to the rights of any holder of Parity Liens and Parity Lien Obligations under applicable law or arising under the terms of this Agreement, and except as otherwise expressly provided set forth herein, the Second Priority Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, also agrees that the First Lien Claimholders Agent and the First holders of the Priority Lien Collateral Agent Obligations shall not have no liability with respect to any liability to the Second Lien Collateral Agents or any such Second Lien Claimholders, and the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral Agent arising out of any and all actions which the First Priority Lien Claimholders Agent or the First holders of the Priority Lien Collateral Agent Obligations may take or permit or omit to take with respect to:
: (1i) the First Priority Lien Loan Documents Documents, (other than this Agreement);
(2ii) the collection of the First Priority Lien Obligations; or
Obligations or (3iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. The Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree that the First Priority Lien Claimholders Agent and holders of the First Priority Lien Obligations will have no duty to the Parity Lien Collateral Agent do not have or any duty to them holder of Parity Lien Obligations in respect of the maintenance or preservation of the First Lien Collateral, the First Priority Lien Obligations or otherwise.
(d) Until the Discharge of First Lien Obligations, the Second Lien Collateral Agents, each on behalf of itself and each other applicable Second Lien Claimholder, agree not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
No Waiver of Lien Priorities. (a) No right of the First Lien ClaimholdersSenior Secured Parties, the First Lien Collateral Agent Senior Representatives or any of them to enforce any provision of this Agreement or any First Lien Loan Senior Debt Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company any Borrower or any other Grantor or by any act or failure to act by any First Lien Claimholder Senior Secured Party or the First Lien Collateral AgentSenior Representative, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Senior Debt Documents or any of the Second Lien Priority Debt Documents, regardless of any knowledge thereof which the First Lien Collateral Agent any other Senior Representative, or any First Lien ClaimholderSenior Secured Party, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company Borrowers and the other Grantors under the First Lien Loan Senior Debt Documents and subject to the provisions of Section 5.3(a5.03(a)), the First Lien ClaimholdersSenior Secured Parties, the First Lien Collateral Agent Senior Representatives, and any of them may, at any time and from time to time in accordance with the First Lien Loan Senior Debt Documents and/or applicable law, without the consent of, or notice to, the any Second Lien Collateral Agents Priority Representative or any other Second Lien ClaimholderPriority Debt Party, without incurring any liabilities to the any Second Lien Collateral Agents Priority Representative or any other Second Lien Claimholder Priority Debt Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the any Second Lien Collateral Agents Priority Representative, or any other Second Lien Claimholder Priority Debt Party is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First Lien Senior Obligations or any Lien on any First Lien Shared Collateral or guaranty of any of the First Lien Senior Obligations or any liability of the Company any Borrower or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Senior Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the First Lien Collateral Agent any Senior Representative, or any of the other First Lien ClaimholdersSenior Secured Parties, the First Lien Senior Obligations or any of the First Lien Loan Senior Debt Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Shared Collateral or any liability of the Company any Borrower or any other Grantor to any of the First Lien Claimholders Senior Secured Parties or the First Lien Collateral AgentSenior Representatives, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any First Lien Senior Obligation or any other liability of the Company any Borrower or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien Senior Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against the Company any Borrower or any other Grantor or any other Person or any security, and elect any remedy and otherwise deal freely with the CompanyBorrowers, any other Grantor or any First Lien Shared Collateral and any security and any guarantor or any liability of the Company any Borrower or any other Grantor to the First Lien Claimholders Senior Secured Parties or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise expressly provided herein, the each Second Lien Collateral AgentsPriority Representative, each on behalf of itself and each other applicable the Second Lien ClaimholderPriority Debt Parties represented by it, also agrees that the First Lien Claimholders Senior Secured Parties and the First Lien Collateral Agent Senior Representatives shall not have any no liability to the such Second Lien Collateral Agents Priority Representative, or any such Second Lien ClaimholdersPriority Debt Parties, and the such Second Lien Collateral AgentsPriority Representative, each on behalf of itself and each other applicable the Second Lien ClaimholderPriority Debt Parties represented by it, hereby waives any claim against any First Lien Claimholder Senior Secured Party or the First Lien Collateral Agent any Senior Representative arising out of any and all actions which the First Lien Claimholders Senior Secured Parties or the First Lien Collateral Agent any Senior Representative may take or permit or omit to take with respect to:
(1) the First Lien Loan Senior Debt Documents (other than this Agreement);
(2) the collection of the First Lien Senior Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Shared Collateral. The Each Second Lien Collateral AgentsPriority Representative, each on behalf of itself and each other applicable the Second Lien ClaimholderPriority Debt Parties represented by it, agree agrees that the First Lien Claimholders Senior Secured Parties and the First Lien Collateral Agent do not Senior Representatives have any no duty to them in respect of the maintenance or preservation of the First Lien Shared Collateral, the First Lien Senior Obligations or otherwise.
(d) . Until the Discharge of First Lien Senior Obligations, the each Second Lien Collateral Agents, each Priority Representative on behalf of itself and each other applicable the Second Lien ClaimholderPriority Debt Parties represented by it, agree agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the any Shared Collateral or any other similar rights a junior secured creditor may have under applicable law.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Cloud Peak Energy Inc.)
