AS PROVIDED IN SECTION
2.1.
TO THE EXTENT THAT THE FOREGOING PROVISIONS ARE NOT COMPLIED WITH FOR ANY
REASON, WITHOUT LIMITING ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO THE FIRST
LIEN AGENT AND/OR THE FIRST LIEN CLAIMHOLDERS, THE SECOND LIEN TRUSTEE, ON
BEHALF OF SECOND LIEN CLAIMHOLDERS, AGREES THAT ANY AMOUNTS RECEIVED BY OR
DISTRIBUTED TO ANY OF THEM PURSUANT TO OR AS A RESULT OF LIENS GRANTED IN
CONTRAVENTION OF THIS SECTION 2.3 SHALL BE SUBJECT TO SECTION 4.2.
2.4
Similar Liens and Agreements.
The parties hereto agree that it is
their intention that the First Lien Collateral and the Second Lien Collateral be
identical.
In furtherance of the foregoing and of Section 8.9, the parties
hereto agree, subject to the other provisions of this Agreement:
(A)
UPON REQUEST BY THE FIRST LIEN AGENT OR THE SECOND LIEN TRUSTEE,
TO COOPERATE IN GOOD FAITH (AND TO DIRECT THEIR COUNSEL TO COOPERATE IN GOOD
FAITH) FROM TIME TO TIME IN ORDER TO DETERMINE THE SPECIFIC ITEMS INCLUDED IN
THE FIRST LIEN COLLATERAL AND THE
11
SECOND LIEN COLLATERAL AND THE STEPS TAKEN TO PERFECT THEIR RESPECTIVE LIENS
THEREON AND THE IDENTITY OF THE RESPECTIVE PARTIES OBLIGATED UNDER THE FIRST
LIEN LOAN DOCUMENTS AND THE SECOND LIEN DOCUMENTS; AND
(B)
THAT THE DOCUMENTS AND AGREEMENTS CREATING OR EVIDENCING THE FIRST
LIEN COLLATERAL AND THE SECOND LIEN COLLATERAL AND GUARANTEES FOR THE FIRST LIEN
OBLIGATIONS AND THE SECOND LIEN OBLIGATIONS, SUBJECT TO SECTION 5.3(D), SHALL BE
IN ALL MATERIAL RESPECTS THE SAME FORMS OF DOCUMENTS OTHER THAN WITH RESPECT TO
THE FIRST LIEN AND THE SECOND LIEN NATURE OF THE OBLIGATIONS THEREUNDER.
SECTION 3.
ENFORCEMENT.
3.1
EXERCISE OF REMEDIES.
(A)
UNTIL THE DISCHARGE OF FIRST LIEN OBLIGATIONS HAS OCCURRED,
WHETHER OR NOT ANY INSOLVENCY OR LIQUIDATION PROCEEDING HAS BEEN COMMENCED BY OR
AGAINST THE COMPANY OR ANY OTHER GRANTOR, THE SECOND LIEN TRUSTEE AND THE SECOND
LIEN CLAIMHOLDERS:
(I)
WILL NOT EXERCISE OR SEEK TO EXERCISE ANY RIGHTS OR REMEDIES WITH
RESPECT TO ANY COLLATERAL OR TAKE POSSESSION OF, SELL OR OTHERWISE REALIZE
(JUDICIALLY OR NON JUDICIALLY) UPON ANY OF THE COLLATERAL (INCLUDING, WITHOUT
LIMITATION, THROUGH THE NOTIFICATION OF ACCOUNT DEBTORS OR THE EXERCISE OF ANY
RIGHT OF SETOFF OR ANY RIGHT UNDER ANY LOCKBOX AGREEMENT, ACCOUNT CONTROL
AGREEMENT, LANDLORD WAIVER OR BAILEE'S LETTER OR SIMILAR AGREEMENT OR
ARRANGEMENT TO WHICH THE SECOND LIEN TRUSTEE OR ANY SECOND LIEN CLAIMHOLDER IS A
PARTY) OR INSTITUTE ANY ACTION OR PROCEEDING WITH RESPECT TO SUCH RIGHTS OR
REMEDIES (INCLUDING ANY ACTION OF FORECLOSURE) (ANY SUCH ACTION TAKEN AFTER THE
OCCURRENCE OF AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT UNDER THE FIRST
LIEN LOAN DOCUMENTS OR THE SECOND LIEN DOCUMENTS, AS APPLICABLE, A "LIEN
ENFORCEMENT ACTION"); PROVIDED, HOWEVER, THAT THE SECOND LIEN TRUSTEE MAY TAKE
ANY OR ALL LIEN ENFORCEMENT ACTIONS AFTER A PERIOD OF AT LEAST 180 DAYS HAS
ELAPSED SINCE THE LATER OF: (I) THE DATE ON WHICH THE SECOND LIEN TRUSTEE
DECLARED THE EXISTENCE OF ANY EVENT OF DEFAULT