No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency Proceeding has been commenced, the Second Lien Secured Parties: (i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, commence any Enforcement Action; provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice of the earlier of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Action, if the First Lien Collateral Agent 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 in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action with respect to any portion of the Collateral; (ii) will not contest, protest or object to any Enforcement Action brought by the First Lien Collateral Agent or any other First Lien Secured Party, including any Enforcement Action by any First Lien Secured Party relating to the Collateral; (iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to the Collateral; (iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral; (v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise; (vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and (vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Titan Energy, LLC), Credit Agreement (Titan Energy, LLC)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent and the Third Lien Collateral Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Purchase Agreement (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing (pursuing, in good faith and in accordance with applicable law, the enforcement or shall have sought exercise of any rights or requested relief from or modification of the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action remedies with respect to any all or a material portion of the CollateralCollateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent and the Third Lien Collateral Agent by the First Lien Collateral Agent);
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Note Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties Parties’ rights under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party Parties from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the CollateralCollateral so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentCollateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided.
(b) The Third Lien Collateral Agent, howeverfor itself and on behalf of the other Third Lien Secured Parties, agrees that, in whether or not any Insolvency or Liquidation Proceeding has been commenced, the case of clauses Third Lien Secured Parties:
(i) through will not, so long as the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has not occurred, (viiA) aboveenforce or exercise, it or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Third Lien Collateral Agent or any other Third Lien Secured Party is a party) or (B) commence or join with any person (other than the intention First Lien Collateral Agent or, after the Discharge of First Lien Obligations has occurred, the parties hereto Second Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action);
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, Second Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party or Second Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Note Documents or Second Lien Note Documents, respectively, or otherwise, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) will not object to the forbearance by the First Lien Collateral Agent, any other First Lien Secured Parties, Second Lien Collateral Agent or any other Second Lien Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iv) will not, so long as the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has not occurred and except for the Third Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to Collateral or any condemnation award (or deed in lieu of condemnation) relating to Collateral;
(v) will not, except for the Third Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Liens granted First Lien Note Documents or Second Lien Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for the Third Lien Permitted Actions, object to secure the manner in which (A) the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, or (B) the Second Lien Collateral Agent or any other Second Lien Secured Party may seek to enforce or collect the Second Lien Obligations or the Second Priority Liens, in each case regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party, or Second Lien Collateral Agent or any other Second Lien Secured Party is, or could be, adverse to the interests of the Third Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation, any First Lien Collateral Document, any Second Lien Obligation or any Second Lien Collateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.
(c) Nothing in this Agreement shall be construed to in any way limit or impair the right of (i) any of the Second Lien Secured Parties shall attach or Third Lien Secured Parties to bid for or purchase for cash the Collateral at any proceeds remaining private or judicial foreclosure upon such Collateral, (ii) the Second Lien Collateral Agent, any Second Lien Secured Party, the Third Lien Collateral Agent or any Third Lien Secured Party from joining (but not controlling) any such Enforcement Action taken foreclosure or other judicial lien proceeding with respect to the Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party (and to the extent permitted by the terms of this Agreement, the Second Lien Collateral Agent or any Second Lien Secured Party) so long as it does not delay or interfere in accordance any material respect with this Agreement after application of such proceeds to Discharge the exercise by the First Lien Collateral Agent or such First Lien Secured Party (or to extent permitted by the terms of this Agreement, the exercise by the Second Lien Collateral Agent or such Second Lien Secured Party) of its rights as provided in this Agreement, (iii) the Second Lien Collateral Agent’s and the Second Lien Note Holders’ rights to receive any remaining proceeds of the Collateral after the Discharge of First Lien Obligations and (iv) the Third Lien Collateral Agent’s and the Third Lien Note Holders’ rights to receive any remaining proceeds of the Collateral after the Discharge of Second Lien Obligations.
Appears in 2 contracts
Sources: Third Lien Subordinated Exchange Note Exchange Agreement (Manchester Financial Group, LP), Third Lien Subordinated Exchange Note Exchange Agreement (Navation, Inc.)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier occurrence of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which as defined in the Second Lien Obligations have been accelerated Priority Debt Documents) and its current intention to accelerate the Indebtedness then outstanding under the Second Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to all or a material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Party has commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Party nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iiic) subject to the rights of the Second Lien Priority Secured Parties under clause (i) aboveSection 3.02(a), will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Priority Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Priority Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 2 contracts
Sources: Intercreditor Agreement (Forbes Energy Services LLC), Intercreditor Agreement (Forbes Energy Services Ltd.)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailees letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent and the Third Lien Collateral Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Purchase Agreement (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing (pursuing, in good faith and in accordance with applicable law, the enforcement or shall have sought exercise of any rights or requested relief from or modification of the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action remedies with respect to any all or a material portion of the CollateralCollateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent and the Third Lien Collateral Agent by the First Lien Collateral Agent);
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Note Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties rights under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party Parties from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the CollateralCollateral so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentCollateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided.
(b) The Third Lien Collateral Agent, howeverfor itself and on behalf of the other Third Lien Secured Parties, agrees that, in whether or not any Insolvency or Liquidation Proceeding has been commenced, the case of clauses Third Lien Secured Parties:
(i) through will not, so long as the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has not occurred, (viiA) aboveenforce or exercise, it or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailees letter or any similar agreement or arrangement to which the Third Lien Collateral Agent or any other Third Lien Secured Party is a party) or (B) commence or join with any person (other than the intention First Lien Collateral Agent or, after the Discharge of First Lien Obligations has occurred, the parties hereto Second Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action);
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, Second Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party or Second Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Note Documents or Second Lien Note Documents, respectively, or otherwise, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) will not object to the forbearance by the First Lien Collateral Agent, any other First Lien Secured Parties, Second Lien Collateral Agent or any other Second Lien Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iv) will not, so long as the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has not occurred and except for the Third Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to Collateral or any condemnation award (or deed in lieu of condemnation) relating to Collateral;
(v) will not, except for the Third Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Liens granted First Lien Note Documents or Second Lien Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for the Third Lien Permitted Actions, object to secure the manner in which (A) the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, or (B) the Second Lien Collateral Agent or any other Second Lien Secured Party may seek to enforce or collect the Second Lien Obligations or the Second Priority Liens, in each case regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party, or Second Lien Collateral Agent or any other Second Lien Secured Party is, or could be, adverse to the interests of the Third Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation, any First Lien Collateral Document, any Second Lien Obligation or any Second Lien Collateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.
(c) Nothing in this Agreement shall be construed to in any way limit or impair the right of (i) any of the Second Lien Secured Parties shall attach or Third Lien Secured Parties to bid for or purchase for cash the Collateral at any proceeds remaining private or judicial foreclosure upon such Collateral, (ii) the Second Lien Collateral Agent, any Second Lien Secured Party, the Third Lien Collateral Agent or any Third Lien Secured Party from joining (but not controlling) any such Enforcement Action taken foreclosure or other judicial lien proceeding with respect to the Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party (and to the extent permitted by the terms of this Agreement, the Second Lien Collateral Agent or any Second Lien Secured Party) so long as it does not delay or interfere in accordance any material respect with this Agreement after application of such proceeds to Discharge the exercise by the First Lien Collateral Agent or such First Lien Secured Party (or to extent permitted by the terms of this Agreement, the exercise by the Second Lien Collateral Agent or such Second Lien Secured Party) of its rights as provided in this Agreement, (iii) the Second Lien Collateral Agents and the Second Lien Note Holders rights to receive any remaining proceeds of the Collateral after the Discharge of First Lien Obligations and (iv) the Third Lien Collateral Agents and the Third Lien Note Holders rights to receive any remaining proceeds of the Collateral after the Discharge of Second Lien Obligations.
Appears in 2 contracts
Sources: Second Lien Subordinated Note Purchase Agreement (NextWave Wireless Inc.), Intercreditor Agreement (NextWave Wireless Inc.)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 90 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action 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 Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iiic) subject to the rights of the Second Lien Priority Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Priority Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Priority Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 2 contracts
Sources: Intercreditor Agreement (Gastar Exploration LTD), Intercreditor Agreement (Gastar Exploration LTD)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Priority Secured Parties will not, except for Second Priority Permitted Actions, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Shared Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that none of the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), Priority Secured Parties may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after until a period of 180 days has elapsed since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier occurrence of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Shared 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Shared Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Shared Collateral;
(ii) will not contest, protest or object to any Enforcement Action brought by in the First Lien Collateral Agent or any other First Lien Secured Party, including any Enforcement Action by any First Lien Secured Party relating to the Collateral;
(iii) subject to the rights of event that and for so long as the Second Lien Priority Secured Parties under clause (ior the Second Priority Agent on their behalf) above, will not object have commenced any actions to the forbearance by the First enforce their Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to any Shared Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Shared Collateral;; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with.
(ivb) will notEach Person that holds Excess Claims agrees that, so long as the Discharge of First Lien Obligations Second Priority Claims has not occurred and except for Second Lien Permitted Actionsoccurred, take whether or receive not any CollateralInsolvency or Liquidation Proceeding has been commenced, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) such Person will not, except for Second Lien Excess Claims Permitted Actions, take any action that would(A) enforce or exercise, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect exercise, any rights or remedies (including any right of setoff) with respect to any Shared Collateral (including the First Lien Obligations enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which such Person is a party) or (B) commence or join with any Person (other than the Second Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action). For the sake of clarity, the foregoing provisions of this Section 3.02(b) shall only apply to the exercise of rights and remedies by the holders of Excess Claims in such capacity and shall not be applicable to the First Priority Liens, regardless Secured Parties in respect of whether any action or failure to act by or on behalf their exercise of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, rights and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law remedies with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any their First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien ObligationsPriority Claims.
Appears in 2 contracts
Sources: Intercreditor Agreement (Green Field Energy Services, Inc.), Indenture (Green Field Energy Services, Inc.)
No interference. (a) The Second Lien Collateral Administrative Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement (if any), any letter to purchasers of production, or any similar agreement or arrangement to which the Second Lien Administrative Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Lien Administrative Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that that, after a period of 180 days has elapsed since the date on which the Second Lien Collateral Administrative Agent has delivered to the First Lien Administrative Agent written notice of the acceleration of the Obligations then outstanding under the Second Lien Credit Agreement as the result of the occurrence and continuation of an Event of Default under the Second Lien Credit Agreement (the “Standstill Period”), the Second Lien Administrative Agent may, subject to with the other provisions concurrence of this Agreement (including the turnover provisions Second Lien Required Lenders, or shall, at the written direction of Article IV)the Second Lien Required Lenders, enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice of the earlier of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Administrative Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Administrative Agent 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 in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any portion Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Administrative Agent by the First Lien Administrative Agent), or any Grantor, acting with the consent of the First Lien Administrative Agent, shall have commenced and shall be diligently pursuing any action to Dispose of any Collateral;; provided further, however, that notwithstanding any enforcement action or any exercise of rights by the Second Lien Administrative Agent, the proceeds thereof shall remain subject to this Agreement in all respects, including Sections 2.01 and 2.07 hereof.
(ii) will not contest, protest protest, seek to enjoin or object to (x) any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Administrative Agent or any other First Lien Secured Party, including any Enforcement Action by any First Lien Secured Party relating to the Collateral;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.,
Appears in 2 contracts
Sources: Credit Agreement (Quintana Energy Services Inc.), Credit Agreement (Quintana Energy Services Inc.)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier acceleration of (x) all or any portion of the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Notes (the “Standstill Period”); provided further, however, however (A) that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing pursuing, the enforcement or exercise of any rights or remedies with respect to such Collateral or any such action or proceeding and (B) that after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the First Lien Secured Parties have commenced any action to enforce the First-Priority Liens on any material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or shall the Second Lien Collateral Agent on their behalf) have sought or requested relief from or modification of commenced any actions to enforce the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action Second-Priority Liens with respect to any portion Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Lien Secured Parties nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the Collateralturnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second-Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First First-Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentCollateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided.
(b) The First Lien Collateral Agent, howeverfor itself and on behalf of the other First Lien Secured Parties, agrees that, in whether or not any Insolvency or Liquidation Proceeding has been commenced, the case of clauses First Lien Secured Parties:
(i) through (vii) abovewill not contest, it is the intention of the parties hereto that the Liens granted protest or object to secure any foreclosure action or proceeding brought by the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any Second Lien Secured Party of any rights or remedies relating to the Indenture Exclusive Collateral under the Second Lien Loan Documents or otherwise;
(ii) will not object to the forbearance by the Second Lien Collateral Agent or any other Second Lien Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Indenture Exclusive Collateral;
(iii) will not, so long as the Indenture Obligations have not been paid in full, take or receive any Indenture Exclusive Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Indenture Exclusive Collateral or in connection with any insurance policy award under a policy of insurance relating to any Indenture Exclusive Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Indenture Exclusive Collateral;
(iv) will not, except in the course of taking any remedy or action against any First Lien Collateral (but, in any event, not against any Indenture Exclusive Collateral), take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Second Lien Loan Documents, including any Disposition of any Indenture Exclusive Collateral, whether by foreclosure or otherwise;
(v) will not object to the manner in which the Second Lien Collateral Agent or any other Second Lien Secured Party may seek to enforce or collect the Indenture Obligations or the Indenture Exclusive Collateral Liens, regardless of whether any action or failure to act by or on behalf of the Second Lien Collateral Agent or any other Second Lien Secured Party is, or could be, adverse to the interests of the First Lien Secured Party in accordance Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Indenture Exclusive Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any Indenture Obligation or any Second Lien Collateral Document, including this Agreement after application Agreement, or the validity or enforceability of such proceeds to Discharge the First Lien Obligationspriorities, rights or obligations established by this Agreement.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency Proceeding has been commenced, the Second Lien Secured Parties:
(ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurredoccurred and except for Second Lien Permitted Actions, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement (if any), any letter to purchasers of production, or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Lien Administrative Agent acting alone or in concert with the Second Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action) with respect to any Collateral; provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), ) enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Agent written notice of the earlier acceleration of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Administrative Agent 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 in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action 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 (prompt written notice thereof to be given to the Second Lien Collateral Agent by the First Lien Administrative Agent), or any Grantor, acting with the consent of the First Lien Administrative Agent, shall have commenced and shall be diligently pursuing any action to Dispose of all or any material portion of the Collateral;
(iib) subject to Section 3.01(a)(viii), will not contest, protest or object to (x) any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Administrative Agent or any other First Lien Secured Party, including (y) any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, or (z) any action taken by any Grantor to Dispose of Collateral with the consent of the First Lien Administrative Agent when an Event of Default has occurred and is continuing under the First Lien Loan Documents, in each case so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Administrative Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, would hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Administrative Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waivewaives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law Legal Requirement with respect to the Collateral or any similar rights a junior secured creditor may have under applicable lawLegal Requirement; and
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any provision of any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this AgreementAgreement or under applicable Legal Requirement; provided, however, that, in the case of clauses (ia) through (viig) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action enforcement actions taken by the First Lien Collateral Administrative Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds Proceeds to the extent necessary to meet the requirements of a Discharge the of First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (i) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (ii) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action) regarding any Collateral; provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 120 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which as defined in the Second Lien Obligations have been accelerated Credit Agreement) under the Second Lien Credit Agreement (the “"Standstill Period”") (with respect to any Enforcement Action after the expiration of the Standstill Period, the First Lien Collateral Agent shall deliver any notices (including, without limitation, notices to appropriate parties, that the First Lien Collateral Agent has ceased to be the "Controlling Party" and notices of termination pursuant to control agreements) and take any other actions reasonably requested by the Second Lien Collateral Agent to terminate First Lien Agent's "control" status with respect to Collateral and the First Lien Agent, for itself and on behalf of each First Lien Secured Party, hereby appoints the Second Lien Agent, and any officer or agent of the Second Lien Collateral Agent, with full power of substitution, the attorney-in-fact of each First Lien Secured Party for the limited purpose of carrying out any Enforcement Action after the Standstill Period, which appointment is irrevocable and coupled with an interest); provided further, however, that (i) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently and in good faith 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral;
Collateral or any such action or proceeding (ii) will not contest, protest or object prompt written notice thereof to any Enforcement Action brought be given to the Second Lien Collateral Agent by the First Lien Collateral Agent) and (ii) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent or any nor the other First Lien Secured Party, including Parties have commenced any Enforcement Action by action to enforce their Lien on any First Lien Secured Party relating to material portion of the Collateral;
(iii) subject to , in the rights of event that and for so long as the Second Lien Secured Parties under clause (ior the Second Lien Collateral Agent on their behalf) above, will not object have commenced any actions to enforce their Lien with respect to any material portion of the Collateral to the forbearance by extent permitted hereunder and are diligently and in good faith pursuing such actions, neither the First Lien Secured Parties nor the First Lien Collateral Agent or shall take any other First Lien Secured Party from commencing or pursuing any Enforcement Action action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the Collateralturnover provisions of Article IV) are complied with;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
Sources: Intercreditor Agreement (Pacific Energy Resources LTD)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Lien Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent 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 in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Agent by the First Lien Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Agent nor the First Lien Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Agent on their behalf) have commenced actions to enforce their Lien with respect to all or any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions (it being understood that this clause shall not constitute a waiver by the First Lien Agent or the other First Lien Secured Parties of the provisions of Article VI), neither the First Lien Secured Parties nor the First Lien Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with; and provided further that the Standstill Period shall be tolled for so long as any automatic stay or any other stay or other order prohibiting the exercise of remedies by the First Lien Agent or the First Lien Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viivi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; . provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds Proceeds remaining from any such Enforcement Action enforcement actions taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds Proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(i) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 90 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “"Standstill Period”"); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Lien with respect to any Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iii) subject to the rights of the Second Lien Priority Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Priority Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Priority Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, .
(b) Each Person that holds Excess Claims agrees that, in the case of clauses whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, such Person:
(i) through except for Excess Claims Permitted Actions, will not, so long as the Discharge of Second Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which such Person is a party) or (B) commence or join with any Person (other than the Second Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action);
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the Second Priority Agent or any other Second Priority Secured Party, or any other enforcement or exercise by any Second Priority Secured Party of any rights or remedies relating to the Collateral under the Second Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Liens securing the Excess Claims attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(b);
(iii) subject to the rights of all such Persons under clause (i) above, will not object to the forbearance by the Second Priority Agent or any other Second Priority Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of Second Priority Claims has not occurred and except for Excess Claims Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Excess Claims Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Second Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Excess Claims Permitted Actions, object to the manner in which the Second Priority Agent or any other Second Priority Secured Party may seek to enforce or collect the Second Priority Claims or the Second Priority Liens, regardless of whether any action or failure to act by or on behalf of the Second Priority Agent or any other Second Priority Secured Party is, or could be, adverse to the interests of all such Persons, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) abovewill not attempt, it is directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the intention validity or enforceability of any Second Priority Claim or any Second Priority Security Document, including this Agreement, or the validity or enforceability of the parties hereto that priorities, rights or obligations established by this Agreement. For the Liens granted sake of clarity, the foregoing provisions of this Section 3.02(b) shall only apply to secure the Second Lien Obligations exercise of rights and remedies by the Second Lien holders of Excess Claims in such capacity and shall not be applicable to the First Priority Secured Parties shall attach in respect of their exercise of rights and remedies with respect to any proceeds remaining from any such Enforcement Action taken by the their First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien ObligationsPriority Claims.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any First Priority Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent with the consent of the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled to enforce or exercise any rights or remedies with respect to any First Priority Collateral as a result of (x) any injunction issued by a court of competent jurisdiction or (y) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any First Priority 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any material portion of the First Priority Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor any of the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the First Priority Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the First Priority Collateral to the extent permitted hereunder (prompt written notice thereof to be given to the First Priority Agent by the Second Priority Agent) and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such First Priority Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateraltake, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect cause to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take be taken any action that would, or could reasonably be expected to, restrain, hinder, limit, delay or otherwise interfere with, in any mannermanner and whether by judicial proceedings or otherwise, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vie) will not, except for Second Lien Permitted Actions, not object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and;
(viif) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.;
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except , for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred:
(a) will not, except for Second Lien Permitted Actions, (i) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (ii) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 120 days has elapsed since the date on which the Second any First Lien Administrative Agent has delivered to the First any Second Lien Administrative Agent written notice of the earlier of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actionscontrary (other than clause (B) below), in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent 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 in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any portion Collateral or any such action or proceeding (prior written notice thereof to be given to the Second Lien Collateral Agent by the First Lien Collateral Agent, which notice shall comply with any applicable notice requirements under Article 9 of the UCC), but in limitation of the foregoing, during any consecutive 365-day period, the aggregate number of days in which the Second Lien Collateral Agent shall be subject to a Standstill Period shall not exceed 180 days (a “Standstill Limit”) and (B) if, upon the expiration of the Standstill Period (or such earlier expiration by virtue of a Standstill Limit), the First Lien Collateral Agent (or any First Lien Secured Party) has not commenced, or is not diligently pursuing, the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding, the Second Lien Collateral Agent (or any Second Lien Secured Party) shall provide prior written notice to the First Lien Collateral Agent (which notice shall comply with any applicable notice requirements under Article 9 of the UCC) prior to its enforcing or exercising any rights or remedies with respect to the Collateral;
(iib) subject to Section 3.01(a)(v), will not not, directly or indirectly, contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Transaction Documents or otherwise, so long as Second Priority Liens attach to the Proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iiic) subject to the rights of the Second Lien Secured Parties under clause (ia) aboveabove and Section 3.01(a)(v), will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds Proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Transaction Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise or whether as a Second Lien Secured Party, an unsecured creditor or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Administrative Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations Indebtedness has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Administrative Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Administrative Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Administrative Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent a written notice of the earlier of (x) the date on which that an Event of Default (as defined under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement) has occurred (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Administrative Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Administrative Agent 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 in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to all or a material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Administrative Agent by the First Lien Administrative Agent) and (B) each Second Lien Secured Party agrees that upon termination of a Standstill Period, if any Second Lien Secured Party or the Second Lien Administrative Agent or other representative of such Second Lien Secured Party intends to commence any action to enforce a Lien on a material portion of the Collateral, then such Second Lien Secured Party or the Second Lien Administrative Agent or other representative shall first deliver notice thereof in writing to the First Lien Administrative Agent not less than ten (10) days prior to taking any such enforcement action. Such notices may be given during a Standstill Period;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Administrative Agent or any other First Lien Secured PartyParty against the Collateral, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Administrative Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations Indebtedness has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Administrative Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations Indebtedness or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viivi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 120 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier acceleration of (x) all or any portion of the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Notes (the “Standstill Period”); provided further, however, however (A) that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing pursuing, the enforcement or exercise of any rights or remedies with respect to such Collateral or any such action or proceeding and (B) that after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the First Lien Secured Parties have commenced any action to enforce the First-Priority Liens on any material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or shall the Second Lien Collateral Agent on their behalf) have sought or requested relief from or modification of commenced any actions to enforce the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action Second-Priority Liens with respect to any portion Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Lien Secured Parties nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the Collateralturnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second-Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First First-Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentCollateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided.
(b) The First Lien Collateral Agent, howeverfor itself and on behalf of the other First Lien Secured Parties, agrees that, in whether or not any Insolvency or Liquidation Proceeding has been commenced, the case of clauses First Lien Secured Parties:
(i) through (vii) abovewill not contest, it is the intention of the parties hereto that the Liens granted protest or object to secure any foreclosure action or proceeding brought by the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any Second Lien Secured Party of any rights or remedies relating to the Indenture Exclusive Collateral under the Second Lien Loan Documents or otherwise;
(ii) will not object to the forbearance by the Second Lien Collateral Agent or any other Second Lien Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Indenture Exclusive Collateral;
(iii) will not, so long as the Indenture Obligations have not been paid in full, take or receive any Indenture Exclusive Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Indenture Exclusive Collateral or in connection with any insurance policy award under a policy of insurance relating to any Indenture Exclusive Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Indenture Exclusive Collateral;
(iv) will not, except in the course of taking any remedy or action against any First Lien Collateral (but, in any event, not against any Indenture Exclusive Collateral), take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Second Lien Loan Documents, including any Disposition of any Indenture Exclusive Collateral, whether by foreclosure or otherwise;
(v) will not object to the manner in which the Second Lien Collateral Agent or any other Second Lien Secured Party may seek to enforce or collect the Indenture Obligations or the Indenture Exclusive Collateral Liens, regardless of whether any action or failure to act by or on behalf of the Second Lien Collateral Agent or any other Second Lien Secured Party is, or could be, adverse to the interests of the First Lien Secured Party in accordance Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Indenture Exclusive Collateral or any similar rights a creditor may have under applicable law; and
(vi) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any Indenture Obligation or any Second Lien Collateral Document, including this Agreement after application Agreement, or the validity or enforceability of such proceeds to Discharge the First Lien Obligationspriorities, rights or obligations established by this Agreement.
Appears in 1 contract
Sources: Intercreditor Agreement (Aventine Renewable Energy Holdings Inc)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any First Priority Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent with the consent of the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled to enforce or exercise any rights or remedies with respect to any First Priority Collateral as a result of (x) any injunction issued by a court of competent jurisdiction or (y) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any First Priority 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any material portion of the First Priority Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor any of the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the First Priority Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the First Priority Collateral to the extent permitted hereunder (prompt written notice thereof to be given to the First Priority Agent by the Second Priority Agent) and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such First Priority Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateraltake, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect cause to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take be taken any action that would, or could reasonably be expected to, restrain, hinder, limit, delay or otherwise interfere with, in any mannermanner and whether by judicial proceedings or otherwise, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vie) will not, except for Second Lien Permitted Actions, not object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and;
(viif) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided;
(g) will not take or cause to be taken any action the purpose or effect of which is, howeveror could be, thatto make any Lien securing the Second Priority Claims pari passu with, or to give such Second Priority Secured Party any preference or priority relative to, any First Priority Claim with respect to the Collateral or any part thereof;
(h) will not challenge or question in any proceeding the case validity or enforceability of clauses any First Priority Claim or First Priority Debt Document, or the validity, attachment, perfection or priority of any First Priority Lien, or the validity or enforceability of the priorities, rights or duties established by the provisions of this Agreement;
(i) through will have no right to (viiA) abovedirect the First Priority Agent or any other First Priority Secured Party to exercise any right, it remedy or power with respect to any Collateral except with respect to First Priority Collateral that is in the intention possession or under the control of the parties hereto that the Liens granted to secure First Priority Agent or other First Priority Secured Party in connection with any permitted enforcement or exercise of rights or remedies by the Second Lien Obligations Priority Agent or any other Second Priority Secured Party against the First Priority Collateral after the end of the Second Lien Standstill Period (including any tolling thereof) or (B) consent to the exercise by the First Priority Agent or any other First Priority Secured Parties shall attach Party of any right, remedy or power with respect to any proceeds remaining First Priority Collateral; and
(j) will not institute any suit or assert in any suit or Insolvency or Liquidation Proceeding any claim against the First Priority Agent or any other First Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to, and neither the First Priority Agent nor any such Enforcement Action other First Priority Secured Party shall be liable for, any action taken or omitted to be taken by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party with respect to any Collateral in accordance a manner consistent with this Agreement after application of such proceeds to Discharge the First Lien ObligationsAgreement.
Appears in 1 contract
Sources: Letter of Credit Agreement (McDermott International Inc)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (i) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Term Secured Party is a party) or (ii) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 150 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier of (x) the date on which an Event of Default (as defined in the Term Credit Agreement) under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Term Credit Agreement (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently and in good faith 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), an Enforcement Action 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 Second Lien Collateral Agent by the First Lien Collateral Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the other First Lien Secured Parties have commenced any action to enforce First Priority Liens on any material portion of the Collateral, in the event that and for so long as the Second Lien Collateral Agent has commenced any actions to enforce the Second Priority Liens with respect to any material portion of the Collateral to the extent permitted hereunder and is diligently and in good faith pursuing such actions, neither the First Lien Consenting Lenders nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(iib) subject to the rights of the Second Lien Secured Parties under clause (a) above, will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as the Second Priority Liens attach to the proceeds thereof, subject to the relative priorities set forth in Section 2.01;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (ia) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actionsoccurred, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Permitted Actions, will not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Permitted Actions, will not object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce the First Priority Liens or collect the First Lien Obligations or the First Priority LiensObligations, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waivewaives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Obligation, First Priority Lien or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
Sources: Intercreditor Agreement (Quicksilver Resources Inc)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether Whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurredoccurred and subject to Section 3.03, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action), in each case, other than Second Lien Permitted Actions; provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent and the Third Lien Collateral Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Purchase Agreement (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing (pursuing, in good faith and in accordance with applicable law, the enforcement or shall have sought exercise of any rights or requested relief from or modification of the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action remedies with respect to any all or a material portion of the CollateralCollateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent and the Third Lien Collateral Agent by the First Lien Collateral Agent), in each case, other than Second Lien Permitted Actions;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Note Documents or otherwise, so long as such action, proceeding, enforcement or exercise is not prohibited hereunder and the Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) will not contest, protest or object to any Third Lien Permitted Action by any Third Lien Secured Party;
(iv) subject to the rights of the Second Lien Secured Parties Parties’ rights under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party Parties from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the CollateralCollateral so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(ivv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted ActionsActions and subject to Section 3.03, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(vvi) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vivii) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(viiviii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentCollateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided.
(b) Whether or not any Insolvency or Liquidation Proceeding has been commenced, however, that, in the case of clauses Parent Third Lien Secured Parties:
(i) through will not, so long as the Discharge of First Lien Obligations , the Discharge of Second Lien Obligations, and the Cross-Collateral Release Date has not occurred, subject to Section 3.03, and except for the Third Lien Permitted Actions, (viiA) aboveenforce or exercise, it or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Third Lien Collateral Agent or any other Parent Third Lien Secured Party is a party) or (B) commence or join with any person (other than (i) the intention First Lien Collateral Agent, (ii) after the Discharge of the parties hereto that the Liens granted to secure First Lien Obligations has occurred, the Second Lien Obligations Collateral Agent, or (iii) after the Discharge of the Second Lien Secured Parties shall attach Obligations has occurred, the Third Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action), in each case, other than Third Lien Permitted Actions;
(ii) will not, except for Third Lien Permitted Actions, contest, protest or object to any proceeds remaining from any such Enforcement Action taken foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, the Second Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party in accordance with this Agreement after application or Second Lien Secured Party of such proceeds any rights or remedies relating to Discharge the Collateral under the First Lien Note Documents or Second Lien Note Documents, respectively, or otherwise, so long as such action, proceeding, enforcement, or exercise is not prohibited hereunder and the Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) will not contest, protest or object to any Third Lien Permitted Action by any Spinco Third Lien Secured Party, or, after the Cross-Collateral Release Date, protest or object to any foreclosure action or proceeding brought by the Third Lien Collateral Agent or any other Spinco Third Lien Secured Party or any other enforcement or exercise by any Spinco Third Lien Secured Party of any rights or remedies relating to the Spinco Third Lien Collateral under the Spinco Third Lien Note Documents or otherwise;
(iv) will not object to the forbearance by the First Lien Collateral Agent, any other First Lien Secured Parties, the Second Lien Collateral Agent, any other Second Lien Secured Parties, the Third Lien Collateral Agent, or any other Spinco Third Lien Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(v) will not, so long as the Discharge of First Lien Obligations, the Discharge of Second Lien Obligations, and the Cross-Collateral Release Date has not occurred, and except for the Third Lien Permitted Actions and subject to Section 3.03, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to Collateral or any condemnation award (or deed in lieu of condemnation) relating to Collateral;
(vi) will not, except for the Third Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Note Documents, Second Lien Note Documents, or the Spinco Third Lien Note Documents including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vii) will not, except for the Third Lien Permitted Actions, object to the manner in which (A) the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, or (B) the Second Lien Collateral Agent or any other Second Lien Secured Party may seek to enforce or collect the Second Lien Obligations or the Second Priority Liens, in each case regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party, or Second Lien Collateral Agent or any other Second Lien Secured Party is, or could be, adverse to the interests of the Third Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(viii) on and after the Cross-Collateral Release Date, will not, except for the Third Lien Permitted Actions, object to the manner in which the Third Lien Collateral Agent or any other Spinco Third Lien Secured Party may seek to enforce or collect the Spinco Third Lien Obligations or the Spinco Third Priority Liens, in each case regardless of whether any action or failure to act by or on behalf of the Third Lien Collateral Agent or any other Spinco Third Lien Secured Party is, or could be, adverse to the interests of the Third Lien Secured Parties, and will not assert, and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(ix) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation, any First Lien Collateral Document, any Second Lien Obligation, any Second Lien Collateral Document, any Spinco Third Lien Obligation, or any Spinco Third Lien Collateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.
(c) Subject to Section 3.03, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Spinco Third Lien Secured Parties:
(i) will not, so long as the Discharge of First Lien Obligations, the Discharge of Second Lien Obligations, and the Cross-Collateral Release Date has not occurred, and except for the Third Lien Permitted Actions, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Third Lien Collateral Agent or any other Spinco Third Lien Secured Party is a party) or (B) commence or join with any person (other than (i) the First Lien Collateral Agent, (ii) after the Discharge of First Lien Obligations has occurred, the Second Lien Collateral Agent, or (iii) after the Discharge of Second Lien Obligations has occurred, the Third Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action), in each case, other than Third Lien Permitted Actions;
(ii) will not, except for the Third Lien Permitted Actions, contest, protest or object to any foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, the Second Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party or Second Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Note Documents or Second Lien Note Documents, respectively, or otherwise, so long as such action, proceeding, enforcement or exercise is not prohibited hereunder and the Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) will not contest, protest or object to any Third Lien Permitted Action by any Parent Third Lien Secured Party, or, after the Cross-Collateral Release Date, protest or object to any foreclosure action or proceeding brought by the Third Lien Collateral Agent or any other Parent Third Lien Secured Party or any other enforcement or exercise by any Parent Third Lien Secured Party of any rights or remedies relating to the Collateral under the Parent Third Lien Note Documents or otherwise;
(iv) will not object to the forbearance by the First Lien Collateral Agent, any other First Lien Secured Parties, the Second Lien Collateral Agent, any other Second Lien Secured Parties, the Third Lien Collateral Agent, or any other Parent Third Lien Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(v) will not, so long as the Discharge of First Lien Obligations, the Discharge of Second Lien Obligations, and the Cross-Collateral Release Date has not occurred, and except for the Third Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to Collateral or any condemnation award (or deed in lieu of condemnation) relating to Collateral;
(vi) will not, except for the Third Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Note Documents, Second Lien Note Documents, or the Parent Third Lien Note Documents including any Disposition of any Collateral, whether by foreclos
Appears in 1 contract
No interference. (a) The Second Lien Collateral AgentRepresentative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, so long as the Discharge of First Lien Secured Obligations has not occurred, and whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) commence (or file with any court documents that seek to commence) or maintain or seek to maintain any Enforcement Action; provided, (B) commence (or file with any court documents that seek to commence) or join with any Person (other than the First Lien Representative or the Super Senior Representative) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to any Enforcement Action or (C) commence (or file with any court documents that seek to commence) or join with any Person (other than the First Lien Representative or the Super Senior Representative) in commencing any involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor;provided, however, that the Second Lien Collateral Agent mayRepresentative may commence or seek to commence, subject and maintain or seek to the other provisions of this Agreement (including the turnover provisions of Article IV)maintain, enforce or exercise any or all such rights and remediesEnforcement Action, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 150 days has elapsed (which period shall be tolled during any period in which the First Lien Representative or the Super Senior Representative is not entitled, on behalf of the First Lien Secured Parties or the Super Senior Secured Parties, as applicable, to take any Enforcement Action with respect to any Collateral as a result of (x) any injunction issued by a court of competent jurisdiction (which the First Lien Representative or the Super Senior Representative, as applicable, is diligently seeking to vacate) or (y) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Agent Representative has delivered to the First Lien Administrative Agent Representative and the Super Senior Representative written notice (with a copy to the Borrower) of the earlier occurrence of (x) an event of default under the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Documents (the “Standstill Period”); provided that all other provisions of this Agreement (including the turnover provisions of Article IV or Article VI) are complied with;provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent Representative or any other Second Lien Secured Party commence an (or file with any court documents that seek to commence) or maintain or seek to maintain any Enforcement Action with respect to any CollateralAction, or commence (or file with any court documents that seek to commence), join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding with respect to any Enforcement Action, if the First Lien Collateral Agent Representative or any other First Lien Secured Party or the Super Senior Representative or any other Super Senior 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 Proceeding to enable the commencement and pursuit thereof), an Enforcement Action with respect to any portion of the CollateralCollateral or any such action or proceeding;
(ii) will not contest, protest or object to any Enforcement Action brought sought or maintained by the First Lien Collateral Agent Representative or any other First Lien Secured Party, including Party or the Super Senior Representative or any Enforcement Action by any First Lien other Super Senior Secured Party relating to the CollateralCollateral under the First Lien Loan Documents, the Super Senior Loan Documents or otherwise, so long as the Second Priority Liens attach to the Proceeds thereof subject to the relative priorities set forth in Section 2.01 and such Enforcement Action is not in contravention of the terms of this Agreement and applicable law;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not contest, protest or object to the forbearance by the First Lien Collateral Agent Representative or any other First Lien Secured Party or the Super Senior Representative or any other Super Senior Secured Party from commencing or pursuing any Enforcement Action with respect or to the Collateralterms or conditions applicable to any such forbearance;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for the Second Lien Permitted Actions, take or receive any Collateral, or any proceeds Proceeds thereof or payment with respect theretothereto (other than, subject to Sections 6.01 and 6.03, Reorganization Securities), in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for the Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any mannermaterial respect, any enforcement or exercise of any rights or remedies under the First Lien Loan Documents or the Super Senior Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for the Second Lien Permitted Actions, contest, protest or object to the manner in which the First Lien Collateral Agent Representative or any other First Lien Secured Party or the Super Senior Representative or any other Super Senior Secured Party may seek to enforce or collect the First Lien Secured Obligations, the Super Senior Secured Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent Representative or any other First Lien Secured Party or the Super Senior Representative or any other Super Senior Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, provided that any such action or failure to act is not in contravention of this Agreement and applicable law, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar statutory right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, and hereby waive any right, to contest, challenge or question the validity or enforceability of any First Lien Secured Obligation or or, any First Lien Security InstrumentDocument, any Super Senior Secured Obligations or any Super Senior Security Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent 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 in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent by the First Lien Collateral Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the First Lien Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Collateral Agent on their behalf) have commenced any actions to enforce their Lien with respect to all or any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Lien Secured Parties nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Administrative Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, commence any Enforcement Action; provided, however, that the Second Lien Collateral Administrative Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement (the “Standstill Period”), so long as such payment default has not been cured or waived and such acceleration, if applicable, has not been rescinded; provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Administrative Agent or any other Second Lien Secured Party commence an Enforcement Action with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Action, if the First Lien Collateral Administrative Agent 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 in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action with respect to any portion of the Collateral (prompt written notice thereof to be given to the Second Lien Administrative Agent by the First Lien Administrative Agent), and (B) after the expiration of the Standstill Period, so long as neither the First Lien Administrative Agent nor the First Lien Secured Parties have commenced any action to enforce their Lien on any portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Administrative Agent on their behalf) have commenced actions to enforce their Lien with respect to all or any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions (it being understood that this clause shall not constitute a waiver by the First Lien Administrative Agent or the other First Lien Secured Parties of the provisions of Article VI), neither the First Lien Secured Parties nor the First Lien Administrative Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with; and provided further that the Standstill Period shall be tolled for so long as any automatic stay or any other stay or other order prohibiting the exercise of remedies by the First Lien Administrative Agent or the First Lien Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction;
(ii) will not contest, protest or object to any Enforcement Action brought by the First Lien Collateral Administrative Agent or any other First Lien Secured Party, including any Enforcement Action by any First Lien Secured Party relating to the CollateralCollateral so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Administrative Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Administrative Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Administrative Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
: (ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (i) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Term Secured Party is a party) or (ii) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 150 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier of (x) the date on which an Event of Default (as defined in the Term Credit Agreement) under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Term Credit Agreement (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently and in good faith 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), an Enforcement Action 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 Second Lien Collateral Agent by the First Lien Collateral Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the other First Lien Secured Parties have commenced any action to enforce First Priority Liens on any material portion of the Collateral;
, in the event that and for so long as the Second Lien Collateral Agent has commenced any actions to enforce the Second Priority Liens with respect to any material portion of the Collateral to the extent permitted hereunder and is diligently and in good faith pursuing such actions, neither the First Lien Consenting Lenders nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (iiincluding the turnover provisions of Article IV) are complied with; (b) subject to the rights of the Second Lien Secured Parties under clause (a) above, will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the Collateral;
Collateral under the First Lien Loan Documents or otherwise, so long as the Second Priority Liens attach to the proceeds thereof, subject to the relative priorities set forth in Section 2.01; (iiic) subject to the rights of the Second Lien Secured Parties under clause (ia) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
; (ivd) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actionsoccurred, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
; (ve) will not, except for Second Lien Permitted Actions, will not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
; (vif) will not, except for Second Lien Permitted Actions, will not object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce the First Priority Liens or collect the First Lien Obligations or the First Priority LiensObligations, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.could
Appears in 1 contract
Sources: Intercreditor Agreement
No interference. (a) The Each of the Second Lien Collateral Agent, Facility Lenders and the Second Lien Administrative Agent (for itself and on behalf of the other Second Lien Secured Parties), agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, commence (A) enforce or exercise, or seek to enforce or exercise, any Enforcement Action; providedrights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any lockbox agreement, howeveraccount control agreement, that landlord waiver or bailee's letter or any similar agreement or arrangement to which the Second Lien Collateral Administrative Agent may, subject to the or any other provisions of this Agreement Second Lien Secured Party is a party) or (including the turnover provisions of Article IV), enforce B) commence or exercise any or all such rights and remedies, or commence, join with any Person person (other than the Administrative Agent and the First Lien Administrative Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided that the Second Lien Administrative Agent may enforce or exercise any or all such rights and remedies, or commence or petition for any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice of the earlier existence of (x) the date on which an a Second Lien Event of Default, so long as such Second Lien Event of Default under any Second Lien Loan Document has occurred not been cured or waived and (y) is continuing since the date on which the Second Lien Obligations have been accelerated of such notice (the “"Standstill Period”"); provided provided, further, however, that (I) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Administrative Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, commence or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Administrative Agent or any other First Lien Secured Party shall have commenced, and shall be is diligently pursuing (in good faith the enforcement or shall have sought exercise of their rights or requested relief from or modification of the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action remedies with respect to any a material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Administrative Agent) and (II) in the event that the Second Lien Secured Parties (or the Second Lien Administrative Agent on behalf of the Second Lien Secured Parties) have commenced any actions to enforce the Second Lien Administrative Agent's Lien on any Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Lien Administrative Agent nor any First Lien Secured Party shall take any action of a similar nature with respect to such Collateral;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Administrative Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 14.1(a);
(iii) subject to the rights of the Second Lien Secured Parties Parties' rights under clause (i) above, will not object to the forbearance by the First Lien Collateral Administrative Agent or any the other First Lien Secured Party Parties from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to any of the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral);
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies of any First Lien Secured Party under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Administrative Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waivewaives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshallingmarshalling or, provided the First Lien Administrative Agent or such other First Lien Secured Party conducts such enforcement or collection actions in a commercially reasonable manner, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; andand 125
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First provisions of any Loan Document (other than provisions related solely to the Second Lien Security Instrument, including this AgreementFacilities), or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien ObligationsSection 14.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Leucadia National Corp)
No interference. (a) The Second Lien Collateral AgentABDC, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which any Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that none of the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), Priority Secured Parties may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 90 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Agent ABDC has delivered to the First Lien Administrative Priority Agent written notice of an uncured default under the earlier of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Prime Vending Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent ABDC or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or ABDC on their behalf) have commenced any actions to enforce their Lien with respect to any Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the Collateral;
(iii) Collateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the rights of the Second Lien Secured Parties under clause (i) aboverelative priorities set forth in Section 2.01(a), and will not contest, protest or object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) . In furtherance of the foregoing, ABDC, for itself and on behalf of the other Second Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Priority Secured Parties will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Priority Permitted Actions, (w) take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
, (vx) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
otherwise and (viy) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
, and (viiz) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Junior Agent, for itself and on behalf of the other Second Lien Junior Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Junior Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Senior Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Junior Agent or any other Junior Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than both Senior Agents) in commencing, or petition for or vote in favor of, any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided, however, that the Second Lien Collateral Junior Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, commence or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 120 days has elapsed since the date on which the Second Lien Administrative Junior Agent has delivered to each of the First Lien Administrative Agent Senior Agents written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Junior Credit Agreement (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Junior Agent or any other Second Lien Junior Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, commence or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), if either of the First Lien Collateral Agent Senior Agents or any other First Lien Senior Secured Party shall have commenced, commenced and shall be diligently pursuing (is continuing in a commercially reasonable manner the enforcement or shall have sought exercise of any rights or requested relief from or modification of the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action remedies with respect to any of the Collateral or any such action or proceeding (including, without limitation, any of the following: solicitation of bids from third parties to conduct the liquidation of all or a portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or a portion of the Collateral, the notification of account debtors to make payments to either of the Senior Agents or their respective agents, the initiation of any action to take possession of all or any portion of the Collateral or the commencement of any legal proceedings or actions against or with respect to all or any portion of the Collateral);
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by either of the First Lien Collateral Agent Senior Agents or any other First Lien Senior Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Senior Secured Party of any rights or remedies relating to the CollateralCollateral under the Senior Credit Documents or otherwise, so long as Junior Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the Junior Secured Parties’ rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral any Senior Agent or any other First Lien Senior Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to any of the Collateral;
(iv) will not, so long as the Discharge of First Lien Senior Obligations has not occurred and except for Second Lien Junior Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral);
(v) will not, except for Second Lien Permitted Actions, not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies by any Senior Agent or any other Senior Secured party under the First Lien Loan Senior Credit Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, not object to the manner in which the First Lien Collateral any Senior Agent or any other First Lien Senior Secured Party may seek to enforce or collect the First Lien Senior Obligations or the First Priority Senior Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral such Senior Agent or any other First Lien Senior Secured Party is, or could be, adverse to the interests of the Second Lien Junior Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar other rights a junior secured creditor may have under applicable lawlaw with respect to the matters described in this clause (vi) except for claims and liabilities arising from gross negligence or willful misconduct; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Senior Obligation or any First Lien Security InstrumentSenior Collateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
Sources: Intercreditor Agreement (Omni Energy Services Corp)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(i) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); providedPROVIDED, howeverHOWEVER, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 120 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”"STANDSTILL PERIOD"); provided furtherPROVIDED FURTHER, howeverHOWEVER, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Lien with respect to any Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; PROVIDED that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iii) subject to the rights of the Second Lien Priority Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Priority Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Priority Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, .
(b) Each Person that holds Excess Claims agrees that, in the case of clauses whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, such Person:
(i) through except for Excess Claims Permitted Actions, will not, so long as the Discharge of Second Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which such Person is a party) or (B) commence or join with any Person (other than the Second Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action);
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the Second Priority Agent or any other Second Priority Secured Party, or any other enforcement or exercise by any Second Priority Secured Party of any rights or remedies relating to the Collateral under the Second Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Liens securing the Excess Claims attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(b);
(iii) subject to the rights of all such Persons under clause (i) above, will not object to the forbearance by the Second Priority Agent or any other Second Priority Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of Second Priority Claims has not occurred and except for Excess Claims Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Excess Claims Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Second Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Excess Claims Permitted Actions, object to the manner in which the Second Priority Agent or any other Second Priority Secured Party may seek to enforce or collect the Second Priority Claims or the Second Priority Liens, regardless of whether any action or failure to act by or on behalf of the Second Priority Agent or any other Second Priority Secured Party is, or could be, adverse to the interests of all such Persons, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) abovewill not attempt, it is directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the intention validity or enforceability of any Second Priority Claim or any Second Priority Security Document, including this Agreement, or the validity or enforceability of the parties hereto that priorities, rights or obligations established by this Agreement. For the Liens granted sake of clarity, the foregoing provisions of this Section 3.02(b) shall only apply to secure the Second Lien Obligations exercise of rights and remedies by the Second Lien holders of Excess Claims in such capacity and shall not be applicable to the First Priority Secured Parties shall attach in respect of their exercise of rights and remedies with respect to any proceeds remaining from any such Enforcement Action taken by the their First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien ObligationsPriority Claims.
Appears in 1 contract
Sources: Intercreditor Agreement (Perkins & Marie Callender's Inc)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent and the Third Lien Collateral Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Purchase Agreement (the “"Standstill Period”"); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing (pursuing, in good faith and in accordance with applicable law, the enforcement or shall have sought exercise of any rights or requested relief from or modification of the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action remedies with respect to any all or a material SF1:727688 portion of the CollateralCollateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent and the Third Lien Collateral Agent by the First Lien Collateral Agent);
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Note Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties Parties’ rights under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party Parties from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the CollateralCollateral so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentCollateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided. SF1:727688
(b) The Third Lien Collateral Agent, howeverfor itself and on behalf of the other Third Lien Secured Parties, agrees that, in whether or not any Insolvency or Liquidation Proceeding has been commenced, the case of clauses Third Lien Secured Parties:
(i) through will not, so long as the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has not occurred, (viiA) aboveenforce or exercise, it or seek to enforce or exercise, any rights or remedies (including any right of setoff and the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Third Lien Collateral Agent or any other Third Lien Secured Party is a party) or (B) commence or join with any person (other than the intention First Lien Collateral Agent or, after the Discharge of First Lien Obligations has occurred, the parties hereto Second Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action);
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, Second Lien Collateral Agent or any other Second Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party or Second Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Note Documents or Second Lien Note Documents, respectively, or otherwise, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) will not object to the forbearance by the First Lien Collateral Agent, any other First Lien Secured Parties, Second Lien Collateral Agent or any other Second Lien Secured Parties from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iv) will not, so long as the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations has not occurred and except for the Third Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to Collateral or any condemnation award (or deed in lieu of condemnation) relating to Collateral;
(v) will not, except for the Third Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the Liens granted First Lien Note Documents or Second Lien Note Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for the Third Lien Permitted Actions, object to secure the manner in which (A) the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, or (B) the Second Lien Collateral Agent or any other Second Lien Secured Party may seek to enforce or collect the Second Lien Obligations or the Second Priority Liens, in each case regardless of whether any SF1:727688 action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party, or Second Lien Collateral Agent or any other Second Lien Secured Party is, or could be, adverse to the interests of the Third Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation, any First Lien Collateral Document, any Second Lien Obligation or any Second Lien Collateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.
(c) Nothing in this Agreement shall be construed to in any way limit or impair the right of (i) any of the Second Lien Secured Parties shall attach or Third Lien Secured Parties to bid for or purchase for cash the Collateral at any proceeds remaining private or judicial foreclosure upon such Collateral, (ii) the Second Lien Collateral Agent, any Second Lien Secured Party, the Third Lien Collateral Agent or any Third Lien Secured Party from joining (but not controlling) any such Enforcement Action taken foreclosure or other judicial lien proceeding with respect to the Collateral initiated by the First Lien Collateral Agent or any First Lien Secured Party (and to the extent permitted by the terms of this Agreement, the Second Lien Collateral Agent or any Second Lien Secured Party) so long as it does not delay or interfere in accordance any material respect with this Agreement after application of such proceeds to Discharge the exercise by the First Lien Collateral Agent or such First Lien Secured Party (or to extent permitted by the terms of this Agreement, the exercise by the Second Lien Collateral Agent or such Second Lien Secured Party) of its rights as provided in this Agreement, (iii) the Second Lien Collateral Agent’s and the Second Lien Note Holders’ rights to receive any remaining proceeds of the Collateral after the Discharge of First Lien Obligations and (iv) the Third Lien Collateral Agent’s and the Third Lien Note Holders’ rights to receive any remaining proceeds of the Collateral after the Discharge of Second Lien Obligations.
Appears in 1 contract
Sources: Third Lien Subordinated Exchange Note Exchange Agreement (NextWave Wireless Inc.)
No interference. (a) The Second Lien Collateral Administrative Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, commence until the expiration of the Standstill Period, enforce or exercise, or seek to enforce or exercise, any Enforcement Actionrights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any lockbox Agreement, account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which the Second Lien Administrative Agent or any other Second Lien Secured Party is a party); provided, however, provided that the Second Lien Collateral Administrative Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, remedies after a period of 180 120 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice (the "STANDSTILL NOTICE") of the earlier acceleration of (x) the date on which an Event of Default indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement (the “Standstill Period”"STANDSTILL PERIOD"); provided provided, further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Administrative Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Action, if the First Lien Collateral Administrative Agent or any other First Lien Secured Party shall have commenced, and is actively pursuing in good faith the enforcement or exercise of their rights or remedies with respect to a material portion of the Collateral (it being expressly understood that the running of the Standstill Period shall be diligently pursuing (independent of any enforcement or shall have sought exercise, or requested relief from or modification cessation of the automatic stay enforcement or exercise, of rights or remedies by the First Lien Administrative Agent or any other stay in First Lien Secured Party and that the Standstill Period shall not cease to run as a result of any Insolvency Proceeding such enforcement or exercise or cessation) and (B) if the Second Lien Secured Parties (or the Second Lien Administrative Agent on behalf of the Second Lien Secured Parties) have, upon not less than ten days' prior written notice to enable the commencement and pursuit thereofFirst Lien Administrative Agent (which notice may not be given prior to the 110th day following delivery of the Standstill Notice), an Enforcement Action commenced any actions to enforce the Second Lien Administrative Agent's Lien on any Collateral to the extent permitted hereunder and are actively pursuing in good faith such actions, neither the First Lien Administrative Agent nor any other First Lien Secured Party shall take any action of a similar nature with respect to any portion of the such Collateral;
(iib) subject to the First Lien Secured Parties' compliance with the standstill and notice provisions of Section 3.01(b) and, if applicable, clause (B) of the second proviso to Section 3.02(a) above, will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Administrative Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the Collateral;
(iii) subject to the rights of the Second Lien Secured Parties Collateral under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent Credit Documents or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to the Collateral;
(iv) will nototherwise, so long as Second Priority Liens attach to the Discharge of proceeds thereof subject to the relative priorities set forth in Section 2.01; provided that it is expressly understood that (i) the First Lien Obligations has Administrative Agent may take any action not occurred otherwise prohibited by this Agreement to preserve or protect the validity and except for Second enforceability of the First Priority Liens; (ii) the First Lien Permitted ActionsSecured Parties may file any necessary responsive or defensive pleadings in opposition to any motion, take claim, adversary proceeding or receive other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the First Lien Secured Parties, including any claims secured by the Collateral, or otherwise make any proceeds thereof agreements or payment with respect thereto, in connection with the exercise of file any Enforcement Action with respect motions pertaining to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan DocumentsObligations, including any Disposition of any Collateralin each case, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which extent not inconsistent with the First terms of this Agreement; and (iii) the Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect securing the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or shall remain on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien of Collateral Agent released or any First Lien Secured Party disposed of in accordance with this Agreement after application of such proceeds subject to Discharge the First Lien Obligations.relative priorities described in Article II;
Appears in 1 contract
Sources: Intercreditor Agreement (Werner Holding Co Inc /Pa/)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to, or seek to have any trustee, receiver, liquidator or similar official appointed for or over, or attempt any action to take possession of, any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Lien Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Agent has delivered to the First Lien Administrative Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent 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 in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Agent by the First Lien Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the First Lien Secured Parties shall have commenced the enforcement or exercise of any rights or remedies with respect to a material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Collateral Agent on their behalf) have commenced actions to foreclose their Lien with respect to all or any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions (it being understood that this clause shall not constitute a waiver by the First Lien Agent or the other First Lien Secured Parties of the provisions of Article VI), neither the First Lien Secured Parties nor the First Lien Collateral Agent shall take any action to foreclose their Lien on such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with; and provided further that the Standstill Period shall be tolled for so long as any automatic stay or any other stay or other order prohibiting the exercise of remedies by the First Lien Collateral Agent or the First Lien Secured Parties with respect to the Collateral is in effect by operation of law or has been entered into by a court of competent jurisdiction;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency Proceeding has been commenced, the Second Lien Secured Parties:
(ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Non-Excluded Obligations has not occurred, commence any Enforcement Action; provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date that is the earlier to occur of (i) the date on which the Second Lien Administrative Agent Collateral Trustee has delivered to the First Lien Administrative Agent written notice of the earlier existence of (x) the date on which an Event of Default under any (as defined in the Second Lien Loan Document has occurred Note Purchase Agreement) and (yii) the date on which the Second Lien Collateral Agent has delivered to the First Lien Administrative Agent written notice that the Second Lien Secured Obligations then outstanding under the Second Lien Note Purchase Agreement have been accelerated (the “Standstill Period”), so long as such event of default has not been cured or waived and such acceleration, if applicable, has not been rescinded; provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Action, if the First Lien Collateral Administrative Agent or any other First Lien Secured Party shall have commencedcommenced prior to the expiration of the Standstill Period, 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 Proceeding to enable the commencement and pursuit thereof), an Enforcement Action with respect to any material portion of the Collateral;
(iib) will not contest, protest or object to any Enforcement Action brought by the First Lien Collateral Administrative Agent or any other First Lien Secured Party, including any Enforcement Action by any First Lien Secured Party relating to the Collateral;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (ia) above, will not object to the forbearance by the First Lien Collateral Administrative Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Non-Excluded Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Administrative Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Administrative Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation marshalling or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Secured Obligation or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (ia) through (viig) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Administrative Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to effectuate a Discharge the of First Lien ObligationsNon-Excluded Obligations in accordance with Section 4.01.
Appears in 1 contract
Sources: Intercreditor Agreement (Silverbow Resources, Inc.)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(i) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 90 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Second Lien Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Second Lien Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Second Lien Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Lien with respect to any Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iii) subject to the rights of the Second Lien Priority Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Priority Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Priority Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.
(b) The Third Priority Agent, for itself and on behalf of the other Third Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Third Priority Secured Parties:
(i) except for Third Priority Permitted Actions, will not, so long as the Discharge of First Priority Claims has not occurred and the Discharge of Second Priority Claims has not occurred (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Third Priority Agent or any other Third Priority Secured Party is a party) or (B) commence or join with any Person (other than the First Priority Agent or the Second Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, thatthat the Third Priority Agent may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 120 days has elapsed (which period shall be tolled during any period in which the First Priority Agent and the Second Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Third Priority Agent has delivered to the First Priority Agent and the Second Priority Agent written notice of the acceleration of the Indebtedness then outstanding under the Third Priority Debt Agreement (the “Third Lien Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Third Lien Standstill Period or anything herein to the contrary, in no event shall the Third Priority Agent or any other Third Priority 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 First Priority Agent or any other First Priority Secured Party or the Second Priority Agent or any other Second Priority 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 any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Third Priority Agent by the First Priority Agent or the Second Priority Agent) and (2) after the expiration of the Third Lien Standstill Period, so long as none of the First Priority Agent, the First Priority Secured Parties, the Second Priority Agent or the Second Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the case event that and for so long as the Third Priority Secured Parties (or the Third Priority Agent on their behalf) have commenced any actions to enforce their Lien with respect to any Collateral to the extent permitted hereunder and are diligently pursuing such actions, none of clauses the First Priority Secured Parties, the First Priority Agent, the Second Priority Secured Parties or the Second Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the First Priority Agent or any other First Priority Secured Party or the Second Priority Agent or any other Second Priority Secured Party or any other enforcement or exercise by any First Priority Secured Party or Second Priority Secured Party of any rights or remedies relating to the Collateral under the First Priority Debt Documents or the Second Priority Debt Documents, as applicable, or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Third Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(a);
(iii) subject to the rights of the Third Priority Secured Parties under clause (i) through above, will not object to the forbearance by the First Priority Agent or any other First Priority Secured Party or the Second Priority Agent or any other Second Priority Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Priority Claims and the Discharge of Second Priority Claims have not occurred and except for Third Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Third Priority Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Priority Debt Documents or Second Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Third Priority Permitted Actions, object to the manner in which the First Priority Agent or any other First Priority Secured Party or the Second Priority Agent or any other Second Priority Secured Party may seek to enforce or collect the First Priority Claims, the First Priority Liens, the Second Priority Claims or the Second Priority Liens, respectively, regardless of whether any action or failure to act by or on behalf of the First Priority Agent or any other First Priority Secured Party or the Second Priority Agent or any other Second Priority Secured Party is, or could be, adverse to the interests of the Third Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) abovewill not attempt, it is directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the intention validity or enforceability of any First Priority Claim, any First Priority Security Document, any Second Priority Claim or any Second Priority Security Document, including this Agreement, or the validity or enforceability of the parties hereto priorities, rights or obligations established by this Agreement.
(c) Each Person that holds Excess Claims agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, such Person:
(i) except for Excess Claims Permitted Actions, will not, so long as the Liens granted Discharge of Second Priority Claims and the Discharge of Third Priority Claims has not occurred, (A) enforce or exercise, or seek to secure enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which such Person is a party) or (B) commence or join with any Person (other than the Second Lien Obligations Priority Agent or the Third Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action);
(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Priority Agent or any First Lien other Second Priority Secured Party or the Third Priority Agent or any other Third Priority Secured Party, or any other enforcement or exercise by any Second Priority Secured Party or any Third Priority Secured Party of any rights or remedies relating to the Collateral under the Second Priority Debt Documents or the Third Priority Debt Documents, respectively, or an Insolvency or Liquidation Proceeding or in accordance connection with this Agreement after application a Liquidation Sale or otherwise, so long as Liens securing the Excess Claims attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01(b);
(iii) subject to the rights of all such proceeds Persons under clause (i) above, will not object to the forbearance by the Second Priority Agent or any other Second Priority Secured Party or the Third Priority Agent or any other Third Priority Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of Second Priority Claims and the First Lien Obligations.Discharge of Third Priority Claims has not occurr
Appears in 1 contract
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action 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 Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor any of the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the Collateral to the extent permitted hereunder (prompt written notice thereof to be given to the First Priority Agent by the Second Priority Agent) and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will notnot take, except for Second Lien Permitted Actions, take or cause to be taken any action that would, or could reasonably be expected to, restrain, hinder, limit, delay or otherwise interfere with, in any mannermanner and whether by judicial proceedings or otherwise, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Permitted Actions, not object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and;
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided;
(h) will not take or cause to be taken any action the purpose or effect of which is, howeveror could be, thatto make any Lien securing the Second Priority Claims pari passu with, in or to give such Second Priority Secured Party any preference or priority relative to, any First Priority Claim with respect to the case of clauses Collateral or any part thereof;
(i) through (vii) abovewill not challenge or question in any proceeding the validity or enforceability of any First Priority Claim or First Priority Debt Document, it is or the intention validity, attachment, perfection or priority of any First Priority Lien, or the validity or enforceability of the parties hereto priorities, rights or duties established by the provisions of this Agreement;
(j) will have no right to (A) direct the First Priority Agent or any other First Priority Secured Party to exercise any right, remedy or power with respect to any Collateral (except with respect to Collateral that is in the Liens granted to secure possession or under the control of the First Priority Agent or other First Priority Secured Party in connection with any permitted enforcement or exercise of rights or remedies by the Second Lien Obligations Priority Agent or any other Second Priority Secured Party against the Collateral after the end of the Second Lien Standstill Period (including any tolling thereof) or (B) consent to the exercise by the First Priority Agent or any other First Priority Secured Parties shall attach Party of any right, remedy or power with respect to any proceeds remaining Collateral; and
(k) will not institute any suit or assert in any suit or Insolvency or Liquidation Proceeding any claim against the First Priority Agent or any other First Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to, and neither the First Priority Agent nor any such Enforcement Action other First Priority Secured Party shall be liable for, any action taken or omitted to be taken by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party with respect to any Collateral in accordance a manner consistent with this Agreement after application of such proceeds to Discharge the First Lien ObligationsAgreement.
Appears in 1 contract
Sources: Intercreditor Agreement (McDermott International Inc)
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(ia) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (i) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee's letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (ii) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action) regarding any collateral; provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 60 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier of (x) the date on which an Event of Default under any Second Lien Loan Document has occurred and (y) the date on which as defined in the Second Lien Obligations have been accelerated (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall Credit Agreement) under the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action Credit Agreement (the "Standstill Period") (with respect to any Collateral, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Action, if the First Lien Collateral Agent 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 in any Insolvency Proceeding to enable the commencement and pursuit thereof), an Enforcement Action with respect to any portion of the Collateral;
(ii) will not contest, protest or object to any Enforcement Action brought by the First Lien Collateral Agent or any other First Lien Secured Party, including any Enforcement Action by any First Lien Secured Party relating to the Collateral;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Instrument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.the
Appears in 1 contract
Sources: Intercreditor Agreement (Pacific Energy Resources LTD)
No interference. (a) The Second Lien Collateral Priority Agent, for itself and on behalf of the other Second Lien Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Lien Priority Secured Parties:
(ia) except for Second Lien Priority Permitted Actions, will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Enforcement ActionPerson (other than the First Priority Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Priority Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled 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 stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Administrative Priority Agent has delivered to the First Lien Administrative Priority Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Priority Debt Agreement (the “Standstill Period”); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Priority Agent or any other Second Lien Priority Secured Party commence an Enforcement Action 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 Enforcement Actionaction or proceeding, if the First Lien Collateral Priority Agent or any other First Lien Priority 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), an Enforcement Action 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 Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the Collateral to the extent permitted hereunder (prompt written notice thereof to be given to the First Priority Agent by the Second Priority Agent) and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(iib) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Priority Secured Party of any rights or remedies relating to the CollateralCollateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1;
(iiic) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(ivd) will not, so long as the Discharge of First Lien Obligations Priority Claims has not occurred and except for Second Lien Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(ve) will not, except for Second Lien Priority Permitted Actions, take take, or cause to be taken any action that would, or could reasonably be expected to, restrain, hinder, limit, delay or otherwise interfere with, in any mannermanner and whether by judicial proceedings or otherwise, any exercise of remedies under the First Lien Loan Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vif) will not, except for Second Lien Priority Permitted Actions, object to the manner in which the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party may seek to enforce or collect the First Lien Obligations Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party is, or could be, adverse to the interests of the Second Lien Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and;
(viig) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation Priority Claim or any First Lien Priority Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided;
(h) will not take or cause to be taken any action the purpose or effect of which is, howeveror could be, thatto make any Lien securing the Second Priority Claims pari passu with, in or to give such Second Priority Secured Party any preference or priority relative to, any First Priority Claim with respect to the case of clauses Collateral or any part thereof;
(i) through (vii) abovewill not challenge or question in any proceeding the validity or enforceability of any First Priority Claim or First Priority Debt Document, it is or the intention validity, attachment, perfection or priority of any First Priority Lien, or the validity or enforceability of the parties hereto priorities, rights or duties established by the provisions of this Agreement;
(j) will have no right to (A) direct the First Priority Agent or any other First Priority Secured Party to exercise any right, remedy or power with respect to any Collateral (except with respect to Collateral that is in the Liens granted to secure possession or under the control of the First Priority Agent or other First Priority Secured Party in connection with any permitted enforcement or exercise of rights or remedies by the Second Lien Obligations Priority Agent or any other Second Priority Secured Party against the Collateral after the end of the Second Lien Standstill Period) or (B) consent to the exercise by the First Priority Agent or any other First Priority Secured Parties shall attach Party of any right, remedy or power with respect to any proceeds remaining Collateral; and
(k) will not institute any suit or assert in any suit or Insolvency or Liquidation Proceeding any claim against the First Priority Agent or any other First Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to, and neither the First Priority Agent nor any such Enforcement Action other First Priority Secured Party shall be liable for, any action taken or omitted to be taken by the First Lien Collateral Priority Agent or any other First Lien Priority Secured Party with respect to any Collateral in accordance a manner consistent with this Agreement after application of such proceeds to Discharge the First Lien ObligationsAgreement.
Appears in 1 contract
No interference. (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any Enforcement Actionperson (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may, subject to the other provisions of this Agreement (including the turnover provisions of Article IV), may enforce or exercise any or all such rights and remedies, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Administrative Collateral Agent has delivered to the First Lien Administrative Collateral Agent written notice of the earlier acceleration of (x) the date on which an Event of Default Indebtedness then outstanding under any Second Lien Loan Document has occurred and (y) the date on which the Second Lien Obligations have been accelerated Credit Agreement (the “Standstill Period”); provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, except for Second Lien Permitted Actions, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party commence an Enforcement Action enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person person in commencing, or petition for or vote in favor of any resolution for, any such Enforcement Actionaction or proceeding, if the First Lien Collateral Agent 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 in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereofof), an Enforcement Action the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent by the First Lien Collateral Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the First Lien Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Collateral Agent on their behalf) have commenced any actions to enforce their Lien with respect to all or any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such actions, neither the First Lien Secured Parties nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any Enforcement Action foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, including or any Enforcement Action other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the CollateralCollateral under the First Lien Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;
(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any Enforcement Action foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any Enforcement Action right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security InstrumentDocument, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided, however, that, in the case of clauses (i) through (vii) above, it is the intention of the parties hereto that the Liens granted to secure the Second Lien Obligations of the Second Lien Secured Parties shall attach to any proceeds remaining from any such Enforcement Action taken by the First Lien Collateral Agent or any First Lien Secured Party in accordance with this Agreement after application of such proceeds to Discharge the First Lien Obligations.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Hawkeye Holdings, Inc.)