Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior to the Discharge of First Lien Obligations (other than Excess First Lien Obligations), both before and during an Insolvency or Liquidation Proceeding, after a period of 180 days has elapsed (which period will be tolled during any period in which the First Lien Collateral Agent is not entitled, on behalf of the First Lien Secured Parties, to enforce or exercise any right or remedy with respect to any Collateral as a result of (i) any injunction issued by a court of competent jurisdiction or (ii) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Lien Collateral Agent has delivered to the First Lien Collateral Agent written notice of the acceleration of any Junior Lien Debt (the “Standstill Period”), the Junior Lien Collateral Agent and the other Junior Lien Secured Parties may enforce or exercise any right or remedy with respect to any Collateral; provided, however, that notwithstanding the expiration of the Standstill Period or anything herein or in the Junior Lien Documents to the contrary, in no event may the Junior Lien Representative or any other Junior Lien Secured Party enforce or exercise any right or remedy with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Lien Collateral Agent, on behalf of the First Lien Secured Parties, or any other First Lien Secured Party, shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right or remedy with respect the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Lien Representatives by the First Lien Collateral Agent); provided, further, that, at any time after the expiration of the Standstill Period, if neither the First Lien Collateral Agent nor any other First Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right or remedy with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Lien Collateral Agent shall have commenced the enforcement or exercise of any right or remedy with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Lien Collateral Agent is diligently pursuing such rights or remedies, neither any First Lien Secured Party nor the First Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding. (b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may: (i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt; (ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral; (iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any; (iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement; (v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral; (vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement; (vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein); (viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and (ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (Pacific Drilling S.A.)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, : after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (i) any injunction issued by a court of competent jurisdiction or (ii) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Standstill Period or anything herein or in the Junior Lien Documents to the contraryPeriod, in no event may the Junior Second Lien Representative Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of any or all of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives Agent by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent is diligently pursuing such rights or remedies, neither any First Priority Lien Secured Party nor the First Priority Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Priority Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 2 contracts
Samples: Credit Agreement (Atlas Energy Group, LLC), Second Lien Credit Agreement (Atlas Energy Group, LLC)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Agent and the Third Lien Collateral Agent Trustee written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Trust Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Representatives by the Priority Lien Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the Priority Lien Agent nor any other Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, in respect of such rights or remedies, then the Second Lien Collateral AgentTrustee shall be free to commence the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, in respect of such rights and remedies; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured PartyParties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Third Lien Representatives by the First Priority Lien Agent or the Second Lien Collateral AgentTrustee, as applicable).
(b) Following the Discharge of Priority Lien Obligations but prior to the Discharge of Second Lien Obligations and notwithstanding Section 3.01, both before and during an Insolvency or Liquidation Proceeding, after a period of 180 days has elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, furtherhowever, that, at any time after that notwithstanding the expiration of the Third Lien Second Standstill PeriodPeriod or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if neither the First Second Lien Collateral Agent nor Trustee on behalf of the Second Lien Secured Parties or any other First Second Lien Secured Party shall have commenced commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) ), the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and proceeding (prompt written notice thereof to be given to the Junior Third Lien Representatives by the Second Lien Collateral Agent shall have commenced the enforcement or exercise of any right or remedy with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Lien Collateral Agent is diligently pursuing such rights or remedies, neither any First Lien Secured Party nor the First Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceedingTrustee).
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Agent and the Third Lien Collateral Agent Trustee written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Trust Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Representatives by the Priority Lien Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the Priority Lien Agent nor any other Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, in respect of such rights or remedies, then the Second Lien Collateral AgentTrustee shall be free to commence the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, in respect of such rights and remedies, and for so long as the Second Lien Collateral Trustee is diligently pursuing such rights or remedies, no Priority Lien Secured Party shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding (provided that during such period the Priority Lien Agent may take any of the actions the Second Lien Collateral Trustee is permitted to take during the Second Lien Standstill Period); and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured PartyParties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Third Lien Representatives by the First Priority Lien Agent or the Second Lien Collateral AgentTrustee, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if neither none of a Priority Lien Secured Party, the First Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding (provided that during such period the Priority Lien Agent nor may take any of the actions the Third Lien Collateral Trustee is permitted to take during the Third Lien First Standstill Period).
(b) Following the Discharge of Priority Lien Obligations but prior to the Discharge of Second Lien Obligations and notwithstanding Section 3.01, both before and during an Insolvency or Liquidation Proceeding, after a period of 180 days has elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) ), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Second Lien Collateral Trustee); provided, further, that, at any time after the expiration of the Third Lien Second Standstill Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Third Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither any First Second Lien Secured Party nor the First Second Lien Collateral Agent Trustee shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
proceeding (b) Notwithstanding anything to provided that during such period the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Second Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) Trustee may take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of actions the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Third Lien Collateral Agent (or any First Trustee is permitted to take during the Third Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinSecond Standstill Period);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, howeverhowever that, that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Trust Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay or prohibition in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Agency Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof)pursuing, the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay or prohibition in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Agent has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Agent and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Agency Agreement to the contrary, in no event may the Third Lien Collateral Agent or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Agent on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing, the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Agent, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Agent shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Agent shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Agent is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Samples: Credit Agreement (Centennial Resource Development, Inc.)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, Proceeding after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent has delivered to the First Priority Lien Collateral Agent written notice of an Event of Default under any Second Lien Document arising from the failure to pay any Second Lien Obligations or the acceleration of any Junior Second Lien Debt (the “Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Standstill Period or anything herein or in the Junior Lien Documents to the contraryPeriod, in no event may the Junior Second Lien Representative Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives Agent by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party nor or the First Priority Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Representatives by the Priority Lien Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the Priority Lien Agent nor any other Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Second Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Second Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party or the Third Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured PartyParties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Third Lien Representatives by the First Priority Lien Agent or the Second Lien Collateral AgentTrustee, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if neither none of any Priority Lien Secured Party, the First Priority Lien Collateral Agent nor Agent, any other First Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Third Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party nor or the First Second Lien Collateral Agent Trustee shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Representatives by the Priority Lien Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the Priority Lien Agent nor any other Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Second Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Second Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party or the Third Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured PartyParties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Third Lien Representatives by the First Priority Lien Agent or the Second Lien Collateral AgentTrustee, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if neither none of a Priority Lien Secured Party, the First Priority Lien Collateral Agent nor Agent, any other First Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Third Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party nor or the First Second Lien Collateral Agent Trustee shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Junior Second Lien Debt is accelerated and (2) the date on which the Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may but shall not be obligated to enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Trust Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or or, if necessary to permit the commencement and pursuit thereof, shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral, or any such action or proceeding in respect of such rights or remedies, then the Second Lien Collateral Trustee shall be free to commence (or refrain from commencing) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral, or any such action or proceeding in respect of such rights and remedies, and for so long as the Second Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party or the Third Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if the Second Lien Collateral Trustee or any Second Lien Secured Party exercises rights or remedies in accordance with the terms of this Section 3.02(a)(i), then such Person shall promptly give written notice thereof to the Priority Lien Agent; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Third Lien Debt is accelerated or (2) the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may but shall not be obligated to enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or, if necessary to permit the commencement and pursuit thereof, shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Third Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party nor or the First Second Lien Collateral Agent Trustee shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if the Third Lien Collateral Trustee or any Third Lien Secured Party exercises rights or remedies in accordance with the terms of this Section 3.02(a)(ii), then such Person shall promptly give written notice thereof to the Priority Lien Agent and the Second Lien Collateral Trustee.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay or prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Third Lien Debt is accelerated and (2) the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may but shall not be obligated to enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or, if necessary to permit the commencement and pursuit thereof, shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order any such action or proceeding (prompt written notice thereof to create be given to the Third Lien Representatives by the Second Lien Collateral Trustee); provided, further, that, at any time after the expiration of the Third Lien Second Standstill Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or perfect its Lien in the Collateral;
(iii) file exercise of any necessary responsive rights or defensive pleading in opposition remedies with respect to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance material portion of the claims Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Junior Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Parties, including Party nor the Second Lien Collateral Trustee shall take any claims secured by the action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if any;
(iv) file the Third Lien Collateral Trustee or any pleading, objection, motion or agreement which asserts Third Lien Secured Party exercises rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, remedies in each case not inconsistent accordance with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that isSection 3.02(b), in each case, not in contravention of the provisions of this Agreement, with respect then such Person shall promptly give written notice thereof to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Second Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdictionTrustee.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent has delivered to the First Priority Lien Collateral Agent written notice of an Event of Default under any Second Lien Document arising from the failure to pay any Second Lien Obligations or the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 300 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Agent has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt or, if later, the last day of the Second Lien Standstill Period (the “Third Lien First Standstill Period”), the Third Lien Collateral Agent and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Agent or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Agent on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Agent, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties thereinParty, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Agent shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Agent shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Agent is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed or, if later, the last day of the Second Lien Standstill Period (which period will be tolled during any period in which the Second Lien Collateral Agent is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Debt;
(ii) take any action (not adverse Collateral Agent has delivered to the priority status Second Lien Collateral Agent written notice of the Liens on acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral securing Agent and the First other Third Lien DebtSecured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, or however that notwithstanding the rights expiration of the First Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Agent or any other First Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Agent on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order any such action or proceeding (prompt written notice thereof to create be given to the Third Lien Representatives by the Second Lien Collateral Agent); provided, further, that, at any time after the expiration of the Third Lien Second Standstill Period, if neither the Second Lien Collateral Agent nor any other Second Lien Secured Party shall have commenced and be diligently pursuing (or perfect its Lien in shall have sought or requested relief from, or modification of, the Collateral;
(iii) file automatic stay or any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding other stay or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or applicable non-bankruptcy law, in each case not inconsistent with the terms exercise of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, rights or remedies with respect to any material portion of the Junior Lien Debt Collateral or any such action or proceeding, and the Collateral;
(vi) seek to enforce Third Lien Collateral Agent shall have commenced the enforcement or exercise of any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding rights or other judicial Lien enforcement proceeding remedies with respect to any material portion of the Collateral initiated by or any such action or proceeding, then for so long as the First Third Lien Collateral Agent (is diligently pursuing such rights or remedies, neither any First Second Lien Secured Party) Party nor the Second Lien Collateral Agent shall take any action of a similar nature with respect to the extent that such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdictionproceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, : after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (i) any injunction issued by a court of competent jurisdiction or (ii) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of any or all of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent is diligently pursuing such rights or remedies, neither any First Priority Lien Secured Party nor the First Priority Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Priority Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this . 18 [Vanguard Intercreditor Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.]
Appears in 1 contract
Samples: Intercreditor Agreement (Vanguard Natural Resources, LLC)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, : after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (i) any injunction issued by a court of competent jurisdiction or (ii) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Lien Collateral Agent Representative has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any series of Junior Lien Debt (the “Standstill Period”), the Junior Lien Collateral Agent Representative and the other Junior Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Standstill Period or anything herein or in the Junior Lien Documents to the contrary, in no event may the Junior Lien Representative or any other Junior Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of any or all of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Lien Collateral Agent Representative shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Lien Collateral Agent Representative is diligently pursuing such rights or remedies, neither any First Priority Lien Secured Party nor the First Priority Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Priority Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Anything to the contrary in this ARTICLE Article III or in any other provision of this AgreementAgreement notwithstanding, the Junior Lien Collateral Agent Representative may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Priority Lien Debt, or the rights of the First Priority Lien Collateral Agent or any other First Priority Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in and to the Collateral;
(iii) file any necessary responsive or defensive pleading pleadings in opposition to any motion, claim, adversary proceeding proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleadingpleadings, objectionobjections, motion motions or agreement agreements which asserts assert rights or interests available to, or exercises exercise rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing filings (including proofs of claim) and argument arguments and motion motions that isare, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Loan Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Priority Lien Collateral Agent (or any First Priority Lien Secured PartyParties) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Priority Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Priority Lien Collateral Agent or any First Priority Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, provided that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Priority Lien Secured Parties receive payment in full in cash of all First Priority Lien Obligations (other than the Excess First Priority Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action actions after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Priority Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Samples: Second Lien Collateral Trust Agreement (CSI Compressco LP)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (i%5) any injunction issued by a court of competent jurisdiction or (ii%5) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Junior Second Lien Debt is accelerated or (2) the date on which the Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Trust Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have 5279325v2 commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.; provided, further, that, if the Second Lien Collateral Trustee or any Second Lien Secured Party exercises rights or remedies in accordance with the terms of this Section 3.02(a)(i), then such Person shall promptly give notice thereof to the Priority Lien Agent; and
(bii) Notwithstanding anything after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (%5) any injunction issued by a court of competent jurisdiction or • the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Third Lien Debt is accelerated or (2) the date on which the Third Lien Collateral Trustee has delivered to the contrary Priority Lien Agent and the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien First Standstill Period or anything in this ARTICLE III the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (%6) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (%6) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by to enable the commencement and pursuit thereof), the enforcement or against exercise of any Grantor, file a claim rights or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions remedies with respect to the Collateral or otherwise) in order any such action or proceeding (prompt written notice thereof to create be given to the Third Lien Representatives by the Priority Lien Agent or perfect its the Second Lien in Collateral Trustee, as applicable); provided, further, that, at any time after the Collateral;
(iii) file expiration of the Third Lien First Standstill Period, if none of any necessary responsive Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or defensive pleading in opposition the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance material portion of the claims Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Junior Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured PartiesParty, including the Priority Lien Agent, any claims secured by Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if any;
(iv) file the Third Lien Collateral Trustee or any pleading, objection, motion or agreement which asserts Third Lien Secured Party exercises rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, remedies in each case not inconsistent accordance with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that isSection 3.02(a)(ii), in each case, not in contravention of the provisions of this Agreement, with respect then such Person shall promptly give written notice thereof to the Junior Priority Lien Debt Agent and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Second Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdictionTrustee.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of an Event of Default under any Second Lien Document arising from the failure to pay any Second Lien Obligations or the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party or the Third Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 300 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Agent has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt or, if later, the last day of the Second Lien Standstill Period (the “Third Lien First Standstill Period”), the Third Lien Collateral Agent and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Agent or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Agent shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Agent is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party nor or the First Second Lien Collateral Agent Trustee shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed or, if later, the last day of the Second Lien Standstill Period (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Debt;
(ii) take any action (not adverse Collateral Agent has delivered to the priority status Second Lien Collateral Trustee written notice of the Liens on acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral securing Agent and the First other Third Lien DebtSecured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, or however that notwithstanding the rights expiration of the First Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Agent or any other First Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order any such action or proceeding (prompt written notice thereof to create be given to the Third Lien Representatives by the Second Lien Collateral Trustee); provided, further, that, at any time after the expiration of the Third Lien Second Standstill Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing (or perfect its Lien in shall have sought or requested relief from, or modification of, the Collateral;
(iii) file automatic stay or any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding other stay or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or applicable non-bankruptcy law, in each case not inconsistent with the terms exercise of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, rights or remedies with respect to any material portion of the Junior Lien Debt Collateral or any such action or proceeding, and the Collateral;
(vi) seek to enforce Third Lien Collateral Agent shall have commenced the enforcement or exercise of any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding rights or other judicial Lien enforcement proceeding remedies with respect to any material portion of the Collateral initiated by or any such action or proceeding, then for so long as the First Third Lien Collateral Agent (is diligently pursuing such rights or remedies, neither any First Second Lien Secured Party) Party nor the Second Lien Collateral Trustee shall take any action of a similar nature with respect to the extent that such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdictionproceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Junior Second Lien Collateral Debt is accelerated and (2) the date on which the Second Lien Agent has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may but shall not be obligated to enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or or, if necessary to permit the commencement and pursuit thereof, shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives Agent by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral, or any such action or proceeding in respect of such rights or remedies, then the Second Lien Agent shall be free to commence (or refrain from commencing) the enforcement or exercise of any rights or remedies with respect to the Collateral, or any such action or proceeding in respect of such rights and remedies, and for so long as the Second Lien Agent is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party or the Third Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if the Second Lien Agent or any Second Lien Secured Party exercises rights or remedies in accordance with the terms of this Section 3.02(a)(i), then such Person shall promptly give written notice thereof to the Priority Lien Agent; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the later of (1) the date on which the Third Lien Debt is accelerated or (2) the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Agent written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may but shall not be obligated to enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Agent on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or, if necessary to permit the commencement and pursuit thereof, shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Agent, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Agent shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Third Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party nor or the First Second Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if the Third Lien Collateral Trustee or any Third Lien Secured Party exercises rights or remedies in accordance with the terms of this Section 3.02(a)(ii), then such Person shall promptly give written notice thereof to the Priority Lien Agent and the Second Lien Agent.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by or against elapsed (which period will be tolled during any Grantorperiod in which the Second Lien Agent is not entitled, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status on behalf of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Second Lien Secured Parties, including to enforce or exercise any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available toremedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction, (B) the automatic stay or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any other stay or prohibition in any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of (C) this Agreement;
) since the later of (v1) vote the date on any plan of reorganization which the Third Lien Debt is accelerated and make any filing (including proofs of claim2) and argument and motion that is, in each case, not in contravention the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Agent written notice of the provisions acceleration of this Agreementany Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may but shall not be obligated to enforce or exercise any rights or remedies with respect to the Junior Lien Debt and the any Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may only include a “credit bid” the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in respect commencing, or petition for or vote in favor of any Junior resolution for, any such action or proceeding, if the Second Lien Debt to Agent on behalf of the extent that, and so long as, the First Second Lien Secured Parties receive payment or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or, if necessary to permit the commencement and pursuit thereof, shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in full in cash any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of all First any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Obligations (other than Excess First Representatives by the Second Lien Obligations) after giving effect theretoAgent); and
(ix) take or otherwise exercise provided, further, that, at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, if neither the Second Lien Agent nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; provided, further, that, if the Third Lien Collateral Trustee or any Third Lien Secured Party exercises rights or remedies in accordance with the terms of this Section 3.02(b), then such Person shall promptly give written notice thereof to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Second Lien Collateral Agent or as required by a court of competent jurisdictionAgent.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Northern Oil & Gas, Inc.)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior the Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Lien Documents to the contraryPeriod, in no event may the Junior Second Lien Representative Collateral Agent or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of any or all of the First Priority Lien Secured Parties, or any other First Lien Secured Party, Parties shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives Trustee by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to all or any material portion of the Collateral or any such action or proceeding, and the Second Lien Collateral Agent shall have commenced the enforcement or exercise of any rights or remedies with respect to all or any material portion of the Collateral or any such action or proceeding, then for so long as the Second Lien Collateral Agent is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party or the Third Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Agent has delivered to the Priority Lien Agent written notice of the acceleration of the Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Agent and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period, in no event may the Third Lien Collateral Agent or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of any or all of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Agent on behalf of any or all of the Second Lien Secured Parties shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect of any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Agent, as applicable); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Agent shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Third Lien Collateral Agent shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Third Lien Collateral Agent is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party nor or the First Second Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Agent is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Debt;
(ii) take any action (not adverse Collateral Agent has delivered to the priority status Second Lien Collateral Agent written notice of the Liens on acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral securing Agent and the First other Third Lien DebtSecured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, or however that notwithstanding the rights expiration of the First Third Lien Second Standstill Period, in no event may the Third Lien Collateral Agent or any other First Third Lien Secured Party to undertake enforcement actions enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Agent on behalf of the Second Lien Secured Parties or otherwise) in order to create any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or perfect its Lien in shall have sought or requested relief from, or modification of, the Collateral;
(iii) file automatic stay or any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding other stay or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or applicable non-bankruptcy law, in each case not inconsistent with the terms exercise of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, rights or remedies with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any all or a material portion of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding Collateral or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that Agent); provided, further, that, at any time after the expiration of the Third Lien Second Standstill Period, if neither the Junior Second Lien Collateral Agent nor any Junior other Second Lien Secured Party shall have commenced and be entitled to receive any proceeds diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any publicsuch action or proceeding, private or judicial foreclosure upon such Collateral initiated by and the First Third Lien Collateral Agent shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any First Lien Secured Partysuch action or proceeding, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and then for so long as, as the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Third Lien Collateral Agent is diligently pursuing such rights or as required by remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Agent shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Samples: Intercreditor Agreement (Midstates Petroleum Company, Inc.)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, : after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (i) any injunction issued by a court of competent jurisdiction or (ii) the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior all outstanding Second Lien Debt (and requesting enforcement action in respect of the Collateral) (the “Standstill Period”), so long as such acceleration is not rescinded, the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Standstill Period or anything herein or in the Junior Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of any or all of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to all or any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives Trustee and the Second Lien Collateral Trustee by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither any First Priority Lien Secured Party nor the First Priority Lien Collateral Agent shall take any action of a similar nature (other than a joinder in connection with such action or proceeding as may reasonably be considered necessary to preserve the rights of the First Priority Lien Secured Parties therein) with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything to the contrary in this ARTICLE III or in any other provision of this Agreement, the Junior Lien Collateral Agent may:
(i) if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by the First Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, however, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise any enforcement action after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent of the First Lien Collateral Agent or as required by a court of competent jurisdiction.
Appears in 1 contract
Samples: Intercreditor Agreement (Vanguard Natural Resources, Inc.)
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior to the Discharge of First Lien Obligations (other than Excess First Lien Obligations)3.01, both before and during an Insolvency or Liquidation Proceeding:
(1) prior to Discharge of Priority Lien Obligations, after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(2) prior to Complete Discharge of Priority Lien Obligations, after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, but subject to the Junior Lien Collateral Agent may:
(iforegoing Section 3.02(a)(ii) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, but subject to the extent specifically permitted in foregoing Section 3.02(a)(ii) if neither the second proviso Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior to the Discharge of First Lien Obligations (other than Excess First Lien Obligations)3.01, both before and during an Insolvency or Liquidation Proceeding:
(i) prior to Discharge of Priority Lien Obligations, after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) prior to Complete Discharge of Priority Lien Obligations, after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, but subject to the Junior Lien Collateral Agent may:
(iforegoing Section 3.02(a)(ii) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, but subject to the extent specifically permitted in foregoing Section 3.02(a)(ii) if neither the second proviso Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (iA) any injunction issued by a court of competent jurisdiction or (iiB) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, howeverhowever that, that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Collateral Trust Agreement or the Second Lien Documents to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other than a joinder stay or prohibition in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent and the Second Lien Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (I) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (II) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Lien Representatives by the Priority Lien Agent or the Second Lien Collateral Trustee, as may reasonably be considered necessary to preserve applicable); provided, further, that, at any time after the rights expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however, that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
Appears in 1 contract
Standstill Periods; Permitted Enforcement Action. (a) Notwithstanding the foregoing Section 3.01 and prior Prior to the Discharge of First Priority Lien Obligations (other than Excess First Lien Obligations)and notwithstanding the foregoing Section 3.01, both before and during an Insolvency or Liquidation Proceeding, :
(i) after a period of 180 days has elapsed (which period will be tolled during any period in which the First Priority Lien Collateral Agent is not entitled, on behalf of the First Priority Lien Secured Parties, to enforce or exercise any right rights or remedy remedies with respect to any Collateral as a result of (ix) any injunction issued by a court of competent jurisdiction or (iiy) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Junior Second Lien Collateral Agent Trustee has delivered to the First Priority Lien Collateral Agent written notice of the acceleration of any Junior Second Lien Debt (the “Second Lien Standstill Period”), the Junior Second Lien Collateral Agent Trustee and the other Junior Second Lien Secured Parties may enforce or exercise any right rights or remedy remedies with respect to any Collateral; provided, however, however that notwithstanding the expiration of the Second Lien Standstill Period or anything herein or in the Junior Second Lien Documents Collateral Trust Agreement to the contrary, in no event may the Junior Second Lien Representative Collateral Trustee or any other Junior Second Lien Secured Party enforce or exercise any right rights or remedy remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Lien Collateral Agent, Agent on behalf of the First Priority Lien Secured Parties, Parties or any other First Priority Lien Secured Party, Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any right rights or remedy remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Junior Second Lien Representatives by the First Priority Lien Collateral Agent); provided, further, that, at any time after the expiration of the Second Lien Standstill Period, if neither the First Priority Lien Collateral Agent nor any other First Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Junior Second Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any right rights or remedy remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Junior Second Lien Collateral Agent Trustee is diligently pursuing such rights or remedies, neither none of any First Priority Lien Secured Party, the Priority Lien Agent, any Third Lien Secured Party nor or the First Third Lien Collateral Agent Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding; and
(ii) after a period of 270 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (x) any injunction issued by a court of competent jurisdiction or (y) the automatic stay or any other than a joinder stay in connection any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent written notice of the acceleration of any Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien First Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if (A) the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party or (B) the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding as may reasonably (prompt written notice thereof to be considered necessary given to preserve the rights Third Lien Representatives by the Second Lien Collateral Trustee); provided, further, that, at any time after the expiration of the Third Lien First Standstill Period, if none of any Priority Lien Secured Parties therein) Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Third Lien Collateral Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien Secured Party or the Second Lien Collateral Trustee shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.
(b) Notwithstanding anything Following the Discharge of Priority Lien Obligations but prior to the contrary in this ARTICLE III or in any other provision Discharge of this AgreementSecond Lien Obligations and notwithstanding the foregoing Section 3.01, the Junior Lien Collateral Agent may:
(i) if both before and during an Insolvency or Liquidation Proceeding Proceeding, after a period of 180 days has been commenced by elapsed (which period will be tolled during any period in which the Second Lien Collateral Trustee is not entitled, on behalf of the Second Lien Secured Parties, to enforce or against exercise any Grantor, file a claim rights or statement of interest remedies with respect to any Collateral as a result of (x) any injunction issued by a court of competent jurisdiction or (y) the Junior Lien Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Collateral securing the First Lien Debt, or the rights of the First Lien Collateral Agent automatic stay or any other First stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Lien Collateral Trustee has delivered to the Second Lien Collateral Trustee written notice of the acceleration of any Third Lien Debt (the “Third Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other Third Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided, however that notwithstanding the expiration of the Third Lien Second Standstill Period or anything in the Third Lien Collateral Trust Agreement to the contrary, in no event may the Third Lien Collateral Trustee or any other Third Lien Secured Party enforce or exercise any rights or remedies with respect to undertake any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or any other Second Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement actions or exercise of any rights or remedies with respect to the Collateral or otherwise) in order to create or perfect its Lien in the Collateral;
(iii) file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Lien Secured Parties, including any claims secured by the Collateral, if any;
(iv) file any pleading, objection, motion or agreement which asserts rights or interests available to, or exercises rights as (to the extent not prohibited by Section 4.07), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
(v) vote on any plan of reorganization and make any filing (including proofs of claim) and argument and motion that is, in each case, not in contravention of the provisions of this Agreement, with respect to the Junior Lien Debt and the Collateral;
(vi) seek to enforce any of the terms of the Junior Lien Documents to the extent not expressly prohibited by the other provisions of this Agreement;
(vii) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Collateral Agent (or any First Lien Secured Party) to the extent that any such action could not reasonably or proceeding (prompt written notice thereof to be expected, in any material respect, given to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action the Third Lien Representatives by the First Second Lien Collateral Agent (it being understood that neither the Junior Lien Collateral Agent nor any Junior Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted hereinTrustee);
(viii) bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party, or any sale of such Collateral during an Insolvency or Liquidation Proceeding; provided, howeverfurther, that such bid may only include a “credit bid” in respect of any Junior Lien Debt to the extent that, and so long as, the First Lien Secured Parties receive payment in full in cash of all First Lien Obligations (other than Excess First Lien Obligations) after giving effect thereto; and
(ix) take or otherwise exercise at any enforcement action time after the expiration of the Third Lien Second Standstill Period Period, if neither the Second Lien Collateral Trustee nor any other Second Lien Secured Party shall have commenced and be diligently pursuing the enforcement or exercise of any rights or remedies with respect to the extent specifically permitted in the second proviso to Section 3.02(a) or with the written consent any material portion of the First Collateral or any such action or proceeding, and the Third Lien Collateral Agent Trustee shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as required by the Third Lien Collateral Trustee is diligently pursuing such rights or remedies, neither any Second Lien Secured Party nor the Second Lien Collateral Trustee shall take any action of a court similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of competent jurisdictionany resolution for, any such action or proceeding.
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