Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that: (a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that: (i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing, (ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder, (iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof, (iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent), (v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and (vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and (b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 4 contracts
Samples: Intercreditor Agreement (A. M. Castle & Co.), Intercreditor Agreement (Total Plastics, Inc.), Intercreditor Agreement (Total Plastics, Inc.)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens (if any) granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent)Agent),[reserved],
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation ProceedingProceeding[reserved], and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 3 contracts
Samples: Intercreditor Agreement (A. M. Castle & Co.), Intercreditor Agreement (Total Plastics, Inc.), Intercreditor Agreement (Total Plastics, Inc.)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, If the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, Borrower or any comparable provision Obligor shall become subject to a case under the U.S. Bankruptcy Code and, if as debtor(s)-in-possession such Borrower or Obligor moves for approval of any other Bankruptcy Law financing, including on a priming basis with respect to Working Capital Lender Priority Collateral (the "DIP Financing") to be provided in good faith by Working Capital Lender or any post-petition or post-filing financing, provided third party approved by any First Lien Secured Party the Working Capital Lender (or provided by any other Person and consented to by First Lien Agentthe "DIP Lender") under Section 364 of the U.S. Bankruptcy Code, Code or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral of Working Capital Lender Priority Collateral under Section 363 of the U.S. Bankruptcy Code, the other Lenders agree that no objection, protest or DIP Financing,
contest (iiincluding joinder or support of any third party objecting, protesting or contesting) the DIP Financing (to the extent provided will be raised by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect such Lenders to any such DIP Financing) is treated financing so long as First Lien Debt hereunder,
(iiiA) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains other Lenders retain a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of such proceeding) with the same priority as existed prior to such Insolvency the commencement of the case under the U.S. Bankruptcy Code (after giving effect to any priming Liens on the Working Capital Lender Priority Collateral in favor of the DIP Lender), (B) any Liens or Liquidation Proceeding (except superpriority claims pursuant to section 507 of the U.S. Bankruptcy Code the DIP Lender seeks on the Pioneer Lender Priority Collateral or the Term Loan Lender Priority Collateral shall be subordinate in all respects to any Liens or claims the Senior Priority Lenders shall have with respect to the extent Pioneer Lender Priority Collateral or the Term Loan Lender Priority Collateral, (C) the aggregate principal amount of any “carve out” agreed to by First Lien Agent),
loans outstanding under such DIP Financing shall not exceed $5,000,000, and (vD) Second Lien Agent receives replacement Liens on all post-petition such DIP Financing is pari passu or post-filing assets of any Grantor superior in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the then outstanding Working Capital Debt and the Liens of First Lien Agent as existed prior to securing such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; andWorking Capital Lender Priority Collateral.
(b) no No Lender shall raise an objection, protest or contest (including joinder or support of any third party objecting, protesting or contesting) (i) any request by the any other Lender for adequate protection in any Insolvency Proceeding (or any granting of such Second request), or (ii) any objection by the Working Capital Lender to any motion, relief, action or proceeding based on a Lender claiming a lack of adequate protection. Notwithstanding the foregoing, in any Insolvency Proceeding, if any Lender is granted adequate protection in the form of additional collateral in connection with any use of cash collateral or DIP Financing, then the other Lenders may seek or request adequate protection in the form of a Lien Secured Party shallon such additional collateral, directly or indirectly, provide, which Lien shall be subordinated to the Liens securing the Obligations of the other Lenders on the same basis as set forth in this Agreement.
(c) No Lender shall oppose or seek to providechallenge any claim by any other Lender for allowance in any Insolvency Proceeding consisting of post-petition interest, DIP Financing secured by fees or expenses.
(d) The Lenders acknowledge and agree that (i) the grants of Liens equal or senior in priority pursuant to the Agreements constitute separate and distinct grants of Liens on and (ii) because of, among other things, their differing rights in the Collateral, the Obligations of the Lenders are fundamentally different from each other and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding.
(e) No Junior Priority Lender shall raise any objection to, oppose or contest (or join with or support any third party opposing, objecting to or contesting), a sale or other disposition of any Senior Priority Collateral free and clear of First Lien Agentits Liens or other claims under Section 363 of the U.S. Bankruptcy Code if the Senior Priority Lender with respect to such Collateral has consented to such sale or disposition of such assets.
(f) No Junior Priority Lender or DIP Lender shall seek to purchase by a credit bid pursuant to section 363 of the U.S. Bankruptcy Code any Senior Priority Collateral unless such credit bid provides for the payment in full, in cash, of all Senior Priority Obligations, including any claims for attorneys' fees, costs or other expenses provided for in the Senior Priority Loan Documents or this Agreement.
(g) No Junior Priority Lender or DIP Lender shall seek relief, pursuant to Section 362(d) of the U.S. Bankruptcy Code or otherwise, from the automatic stay of Section 362(a) of the Bankruptcy Code or from any other stay in any Insolvency Proceeding in respect of any Senior Priority Collateral, without the prior written consent of First Lien Agentthe Senior Priority Lender with respect to such Senior Priority Collateral. Any order entered by the Bankruptcy Court granting authority for the use of cash collateral or authorizing DIP Financing which order also prospectively grants a Lender relief from the automatic stay shall be subject to the provisions of this subsection (g).
(h) Without the prior written consent of the applicable Senior Priority Lender, no Junior Priority Lender shall assert any marshaling, appraisal, valuation, or other similar right with respect to any Senior Priority Collateral that may otherwise be available to a junior secured creditor.
Appears in 2 contracts
Samples: Intercreditor and Subordination Agreement (S&W Seed Co), Intercreditor and Subordination Agreement (S&W Seed Co)
Bankruptcy Financing. If any Grantor Borrower becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Priority Debt has occurred, Second Lien the Collateral Agent, for itself and on behalf of the other Second Lien Noteholder Secured Parties, agrees that:
(a) such Second Lien each Noteholder Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any ABL Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financingfinancing to any Borrower, provided by any First Lien ABL Secured Party or any Qualified Financier (or provided which agrees to be bound by any other Person and consented to by First Lien AgentSection 8 hereof) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 6.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Noteholder Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent ABL Lender hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien ABL Secured Parties and to any “carve out” agreed to by First Lien Agentthe ABL Lender; provided, provided that:
(i) First Lien Agent the ABL Lender does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) , together with the ABL Debt as of such date, does not exceed the principal component of Maximum Priority ABL Debt, and the DIP Financing is treated as First Lien ABL Debt hereunder,
(iii) the Liens on ABL Collateral granted to the First Lien ABL Secured Parties or Qualified Financier in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent ABL Lender for purposes hereof,
(iv) Second Lien the Collateral Agent retains a Lien on the ABL Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agentthe ABL Lender),, Table of Contents
(v) Second Lien the Collateral Agent receives replacement Liens on all assets, including post-petition or post-filing assets assets, of any Grantor Borrower in which any of First Lien Agent the ABL Lender obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent ABL Lender as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien the Noteholder Secured Parties may oppose or object to such use of Cash Collateral cash collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Noteholder Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and.
(b) no such Second Lien Noteholder Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the ABL Collateral of First Lien AgentABL Lender, without the prior written consent of First Lien AgentABL Lender.
Appears in 2 contracts
Samples: Intercreditor and Lien Subordination Agreement, Intercreditor and Lien Subordination Agreement (Vector Group LTD)
Bankruptcy Financing. If Kroll, any Grantor becomes other Borrower or any other Obligor shall become subject to any Insolvency or Liquidation Proceeding, until a case under the Discharge U.S. Bankruptcy Code and if as debtor-in-possession moves for approval of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf financing to be provided in good faith by Foothill (the "DIP Lender") under Section 364 of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, Bankruptcy Code or the use of any Collateral constituting cash collateral with the consent of the DIP Lender under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 each of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with Collateral Agent and the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and Investors agrees that no objection will be deemed hereunder raised by it to have subordinated) the Liens granted to any such Second Lien Secured Parties to such DIP Financing financing on the same terms grounds of a failure to provide "adequate protection" for its Liens so long as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
the interest rate, fees, advance rates, lending sublimits and limits and other terms are commercially reasonable under the circumstances, (ii) each of Foothill and the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Collateral Agent for purposes hereof,
(iv) Second Lien Agent the benefit of the Investors retains a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of such proceeding) with the same priority as existed prior to such Insolvency or Liquidation Proceeding the commencement of the case under the Bankruptcy Code, (except to iii) each of Foothill and the extent Collateral Agent for the benefit of any “carve out” agreed to by First the Investors receives a replacement Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure to the same extent granted to the DIP FinancingLender, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceedingthe commencement of the case under the U.S. Bankruptcy Code, and
and (viiv) such Second Lien Secured Parties may oppose financing or use of cash collateral is subject to the terms of this Agreement. Nothing contained herein shall be deemed to limit the rights of the Collateral Agent to object to such post-petition financing or use of Cash Collateral cash collateral on any grounds other than the failure to provide "adequate protection" for its Liens. For purposes of this Section, notice of a proposed financing or DIP Financing on use of cash collateral shall be deemed given when provided in the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured manner prescribed by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien AgentSection 3.10 hereof.
Appears in 2 contracts
Samples: Intercreditor and Subordination Agreement (Kroll Inc), Intercreditor and Subordination Agreement (Kroll Inc)
Bankruptcy Financing. If (a) Until the Discharge of Senior-Priority Debt has occurred, if any Grantor becomes shall be subject to any Insolvency or Liquidation ProceedingProceeding and any Senior-Priority Collateral Agent shall desire to permit the use of “cash collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code) which constitutes Collateral securing the Senior-Priority Debt or to permit any Grantor to obtain financing from the Senior-Priority Secured Parties or any other person under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (“DIP Financing”), until then (subject to the Discharge terms and conditions set forth in Section 6.4(c) of First Lien Debt has occurred, Second Lien this Agreement) each Junior-Priority Collateral Agent, for itself and on behalf of itself and the other Second Lien Junior-Priority Secured PartiesParties with respect to which such Junior-Priority Collateral Agent is acting as Agent, agrees that:
(a) such Second Lien Secured Parties that it will raise no objection toto such use of cash collateral or DIP Financing (unless the Designated Senior-Priority Collateral Agent or the Senior-Priority Secured Parties for which such Designated Senior-Priority Collateral Agent is acting as Agent shall then oppose or object to such DIP Financing) so long as (i) such cash collateral use or DIP Financing is on commercially reasonable terms and, nor support any other Person objecting toif required by applicable Law, is approved by the Governmental Authority having jurisdiction over such Insolvency or Liquidation Proceeding and (ii) the DIP Financing does not compel Grantors to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in the documents for the DIP Financing, except that such DIP Financing may (A) provide that the plan of reorganization require the Discharge of Senior-Priority Debt and (B) require the Grantors to seek confirmation of a plan acceptable to the Senior-Priority Secured Parties or entities providing the DIP Financing and contain milestones relating to such plan. To the extent that the Liens securing the Senior-Priority Debt are subordinated to or on an equal priority basis with the Liens securing DIP Financing which meets the requirements of clauses (i) and (ii) above, each Junior-Priority Collateral Agent will subordinate (and will be deemed to have consented to, subordinated) the use of Liens securing the respective Junior-Priority Debt in the Collateral to the Liens securing such DIP Financing (and all obligations relating thereto and to any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post“carve-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented out” agreed to by First Lien Agentthe Senior-Priority Collateral Agents or otherwise applicable thereto) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), and will not request or accept adequate protection or any other relief in connection with the use its rights as a holder of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with except as expressly agreed by the same priority as existed prior to such Insolvency Senior-Priority Collateral Agents or Liquidation Proceeding (except to the extent of any “carve out” agreed to otherwise permitted by First Lien AgentSection 6.4),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 2 contracts
Samples: Senior Junior Lien Intercreditor Agreement (Community Health Systems Inc), Fourth Amendment and Restatement Agreement (Community Health Systems Inc)
Bankruptcy Financing. I. If any Grantor becomes Obligor shall become subject to any Insolvency Proceeding and if, as a debtor or Liquidation Proceedingdebtor-in-possession, until such Obligor moves for approval of (i) financing to be provided in good faith by the Discharge of First Lien Debt has occurredAgent or any Tranche A Lender (each a “DIP Lender” and collectively, Second Lien Agentthe “DIP Lenders”), for itself and on behalf under Section 364 of the Bankruptcy Code or any similar provision of other Second Lien Secured PartiesApplicable Law (“DIP Financing”), agrees that:
or (aii) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral (as such term is defined under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 with the consent of the Bankruptcy CodeAgent (referred to herein as “Cash Collateral Use” and, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting together with a priority debtor-in-possession or interim financing charge (DIP Financing, a “DIP Post-Petition Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (each Tranche A-1 Secured Party agrees and will confirms that it shall be deemed hereunder to have subordinated) the Liens granted consented to such Second Lien Secured Parties to such DIP Post-Petition Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof it shall not apply with respect object to any such DIP Financing) is treated as First Lien Debt hereunder,
Post-Petition Financing (iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior nor support any other Person objecting to such Insolvency Post-Petition Financing or Liquidation Proceeding (except to request the extent of Agent make any “carve out” agreed to by First Lien Agentsuch objection),
(v) Second Lien Agent receives replacement Liens , on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, grounds so long as such opposition or objection Post-Petition Financing is not based on the Second Lien Secured Parties’ status as secured creditors and a Conforming Post-Petition Financing. If in connection with such opposition or objectionany Post-Petition Financing, any Liens on the Second Lien Secured Parties affirmatively state that such Second Lien Collateral held by the Tranche A Secured Parties are undersecured secured creditors; and
(b) no subject to a surcharge or are subordinated to an administrative priority claim or are subject to a Carve Out, and so long as the amount of such Second Lien Secured Party shallsurcharge or Carve Out is reasonable under the circumstances, directly or indirectlyand the Agent establishes a borrowing base reserve in the amount of the Carve Out, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to then the Liens on the Collateral of First the Agent for the benefit of the Tranche A-1 Secured Parties shall also be subordinated to such surcharge, claim, Carve Out, court ordered charge, fees or other similar interest or right.
II. The Tranche A-1 Secured Parties agree that they shall not offer or provide, and shall not permit any Affiliate controlled by any of them to offer or provide, and shall not support any other Person in providing or offering, any post-petition financing to the Obligors in any Insolvency Proceeding that is secured by a Lien Agent, without that is senior or pari passu to the prior written consent Lien of First Lien Agentthe Agent held for the benefit of the Tranche A Lenders.
III. Nothing in this Schedule 14 to the Loan Agreement shall limit the rights of the Tranche A Secured Parties to object to any post-petition financing provided or offered to be provided by the Tranche A-1 Secured Parties in connection with any Insolvency Proceeding on any grounds.
Appears in 1 contract
Bankruptcy Financing. (i) If any Grantor becomes Obligor shall become subject to a case under the Bankruptcy Code or any Insolvency or Liquidation Proceeding, until other Debtor Relief Law and such Obligor moves for approval of (1) DIP Financing with the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf consent of the Required First Out Holders (or the Agent acting at the written direction of the Required First Out Holders) (any such provider of DIP Financing, a “DIP Lender”) or (2) the use of “cash collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code, or any similar relief under any other Second Lien Secured Partiesapplicable Debtor Relief Law, agrees that:
herein, “Cash Collateral Use”) with the consent of the Required First Out Holders (a) such Second Lien Secured Parties will raise or the Agent acting at the written direction of the Required First Out Holders), no objection to, nor Last Out Holder shall object to or oppose or direct the Agent to object to or oppose (or support any other Person in objecting toor opposing), and each Last Out Holder will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection Cash Collateral Use; provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii1) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a its Lien on the Collateral to secure the Obligations (in each case, including proceeds thereofthereof arising after the commencement of such Insolvency Proceeding) with the same priority (subject to (A) Section 5 hereof, (B) the Lien and claims securing the DIP Financing and (C) a professional fee “carve-out” and any fees owed to the United States Trustee) as existed prior to such Insolvency the commencement of the case under the Bankruptcy Code or Liquidation Proceeding any other Debtor Relief Law;
(except 2) the Agent receives replacement or additional Liens or other similar relief under any applicable Debtor Relief Law to secure the Last Out Obligations on post-petition assets to the same extent granted in connection with the Cash Collateral Use or the DIP Financing with the same priority (subject to (A) Section 5 hereof, (B) the Lien and claims securing the DIP Financing, and (C) a professional fee “carve-out” and any fees owed to the United States Trustee) as existed prior to the commencement of the case under the Bankruptcy Code or any other Debtor Relief Law;
(3) any such DIP Financing or Cash Collateral Use (A) does not compel any Obligor to seek confirmation of a specific plan of reorganization or liquidation (a “Plan”) or (B) does not expressly require the liquidation of all or any portion of the Collateral prior to a default under the DIP Financing Documents or cash collateral order, as applicable (but may include sale or Plan milestones providing for the sale or reorganization of each Obligor’s business); provided that the foregoing shall not limit the ability of the terms of such DIP Financing or Cash Collateral Use to require that it will be an event of default if a Plan is filed that does not provide for the Payment in Full of the First Out Priority Obligations (without the consent of the First Out Holders); and
(4) the aggregate amount of the obligations owed or, in the case of unfunded commitments, that could be owed, to the DIP Lenders in respect of such DIP Financing, when aggregated (without duplication) with the amount of the First Out Obligations outstanding as of the commencement of a case under the Bankruptcy Code or any other Debtor Relief Law, does not exceed the Maximum First Out Amount.
(ii) No Last Out Holder shall propose, nor shall any Last Out Holder permit any of its Affiliates or Related Funds to propose, any Cash Collateral Use in any Insolvency Proceeding, so long as the Required First Out Holders have approved any Cash Collateral Use that complies with the proviso to Section 3(c)(i). Subject to Section 3(c)(iii), any Last Out Holder may (1) object to or oppose or direct the Agent to object to or oppose (or support any Person in objecting or opposing) any Cash Collateral Use or DIP Financing that does not comply with the terms of Section 3(c) or (2) offer to provide DIP Financing or Cash Collateral Use that complies with the proviso to Section 3(c)(i) so long as (x) such Last Out Holder or any of its Affiliates or Related Funds shall offer the First Out Holders the opportunity to participate in such DIP Financing on a pro rata basis based on the outstanding amount of all Obligations and (y) the aggregate principal amount (for the avoidance of doubt, inclusive of any interest that has been paid in kind and capitalized in accordance with Section 2(a) of the Tranche A Note) of the Tranche A Notes does not exceed $20,000,000 at the time of filing of the petition by or against any Obligor under the Bankruptcy Code.
(iii) If any First Out Priority Obligations would remain outstanding after the application of any DIP Financing, no Last Out Holder (or any Affiliate or Related Fund of a Last Out Holder) shall offer to provide, or provide, any DIP Financing unless (1) the repayment of such DIP Financing is junior in right of payment to the First Out Priority Obligations (including any DIP Financing provided by the First Out Holders (or one or more Affiliates or Related Funds of First Out Holders) or consented to by the Required First Out Holders, (2) the Liens securing such DIP Financing are junior to the Liens of the Agent securing the First Out Priority Obligations (including any Liens securing DIP Financing provided by the First Out Holders (or one or more Affiliates or Related Funds of First Out Holders) or consented to by the Required First Out Holders, (3) the proceeds of such DIP Financing are not used to repay any Obligations except in accordance with this Agreement and (4) the aggregate amount of the obligations owed or, in the case of unfunded commitments, that could be owed, to the DIP Lenders in respect of such DIP Financing, when aggregated (without duplication) with the amount of the Last Out Obligations outstanding as of the commencement of a case under the Bankruptcy Code or any other Debtor Relief Law, does not exceed the Maximum Last Out Amount.
(iv) No Last Out Holder shall object to or oppose or direct the Agent to object to or oppose (or support any Person in objecting or opposing) any professional fee “carve out” agreed to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority similar surcharge to the Liens on the Collateral (including any fees of the United States Trustee) if such fee or surcharge has been approved by the Required First Lien AgentOut Holders.
(v) Notwithstanding this Section 3(c), without any Last Out Holder may at any time raise any objections (or instruct the prior written consent Agent to do the same) to any post-petition financing or use of First Lien Agentcash collateral that could be raised by any unsecured creditor of any Obligor; provided that such objections are not based on their status as secured creditors and are not otherwise inconsistent with this Agreement.
Appears in 1 contract
Samples: Agreement Among Holders (Oramed Pharmaceuticals Inc.)
Bankruptcy Financing. If any Grantor becomes Credit Party shall become subject to a case under the Bankruptcy Code (or any Insolvency state law of similar effect) and if as debtor(s)-in-possession moves for approval of financing to be provided in whole or Liquidation Proceeding, until the Discharge of in part by one or more First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
Priority Lenders (a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented tocollectively, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent"DIP Lenders") under Section 364 of the Bankruptcy Code, Code or any comparable provision of any other Bankruptcy Law or pursuant for consent to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral (or such DIP Financing except as set forth in Section 7.4 below andany state law of similar effect), to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and Term C Lenders agree that no objection will be deemed hereunder raised by Term C Lenders to have subordinated) any such financing or the Liens granted to use of cash collateral (any such Second Lien Secured Parties to such financing or use of cash collateral, a "DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor AgreementFacility"), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, thatso long as:
(i) First Lien Agent does not oppose or object to the interest rate, fees, lending sublimits and limits and other terms of such use of cash collateral or DIP Financing,Facility shall be commercially reasonable under the circumstances;
(ii) the DIP Financing (to Term C Lenders have the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens benefit of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of any bankruptcy or insolvency proceeding) with the same priority (subject only to the priming Lien of the DIP Lenders) as existed prior to the commencement of the case under the Bankruptcy Code (or any state law of similar effect);
(iii) the Term C Lenders have the benefit of a replacement Lien (subject only to the priming Lien of the DIP Lenders) on post-petition assets (subject to the same priority of payments as existed prior to the commencement of any case under the Bankruptcy Code (or any state law of similar effect));
(iv) the aggregate principal amount of loans and letter of credit accommodations outstanding under such Insolvency or Liquidation Proceeding (except DIP Facility, together with the aggregate principal amount of the pre-petition financing shall not exceed the Maximum First Priority Debt, plus, to the extent provided to the holders of the Facilities on a ratable basis, any “carve out” agreed amounts representing interest on such Facilities for a period of up to by First Lien Agent),nine months;
(v) Second Lien Agent receives replacement Liens on all post-petition such DIP Facility does not modify the intercreditor terms and conditions specified in this Agreement or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, other Loan Document; and
(vi) the documentation for such Second Lien Secured Parties may oppose DIP Facility shall include a comparable purchase option to that described in Section 12.21(a) that shall provide Term C Lenders, upon the occurrence and during the continuance of an event of default as defined in such loan documentation and upon receipt by the Term C Lenders of five (5) Business Days' prior written notice of any (A) acceleration of such debt, (B) enforcement of the rights and remedies of the DIP Lenders with respect to the collateral, or object (C) consent by the DIP Lenders to any sale of all or any material portion of the assets pursuant to Section 363 of the Bankruptcy Code (or any state law of similar effect), the option to purchase at a purchase price equal to the full amount of all of the pre-petition First Priority Debt and the DIP Facility then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys' fees and legal expenses but excluding any early prepayment premium applicable thereto) provided that such use holders of Cash Collateral or the Term C Loans agree to furnish cash collateral to Administrative Agent, for the benefit of the First Priority Lenders and DIP Financing on the same bases Lenders in such amounts as an unsecured creditor, so long as Administrative Agent determines is reasonably necessary to secure such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and Lenders in connection with any issued and outstanding letters of credit provided by such opposition Lenders to Borrowers (but not in any event in an amount greater than 102% of the aggregate undrawn face amount of such letters of credit), and agree to reimburse such First Priority Lenders and DIP Lenders for any loss, cost, damage or objectionexpense (including reasonable attorneys' fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit as described above and any checks or other payments provisionally credited to First Priority Debt and the Second Lien Secured Parties affirmatively state that debt under the DIP facility, and/or as to which such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien AgentLenders have not yet received final payment.
Appears in 1 contract
Samples: Credit Agreement (Veritas DGC Inc)
Bankruptcy Financing. If any Grantor Borrower becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Priority Debt has occurred, Second Lien the Collateral Agent, for itself and on behalf of the other Second Lien Noteholder Secured Parties, agrees that:
(a) such Second Lien each Noteholder Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any ABL Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law Law, or any post-petition or post-filing financing, financing to any Borrower provided by any First Lien ABL Secured Party or any Qualified Financier (or provided which agrees to be bound by any other Person and consented to by First Lien AgentSection 8 hereof) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 6.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Noteholder Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien the ABL Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien ABL Secured Parties and to any “carve out” agreed to by First Lien AgentCarve Out; provided, provided that:
(i) First Lien the ABL Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) , together with the ABL Debt as of such date, does not exceed the principal component of the Maximum Priority ABL Debt Amount, and the DIP Financing is treated as First Lien ABL Debt hereunder,
(iii) the Liens on ABL Collateral granted to the First Lien ABL Secured Parties or Qualified Financier in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien the ABL Agent for purposes hereof,
(iv) Second Lien the Collateral Agent retains a Lien on the ABL Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” Carve Out agreed to by First Lien the ABL Agent),
(v) Second Lien the Collateral Agent receives replacement Liens on all assets, including post-petition or post-filing assets assets, of any Grantor Borrower in which any of First Lien the ABL Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien ABL Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien the Noteholder Secured Parties may oppose or object to such use of Cash Collateral cash collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Noteholder Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and.
(b) no such Second Lien Noteholder Secured Party shall, directly or indirectly, provide, or seek to provideprovide or support any party seeking to provide (other than the ABL Agent or a Qualified Financier as provided above), DIP Financing secured by Liens equal or senior in priority to the Liens on the ABL Collateral of First Lien the ABL Agent, without the prior written consent of First Lien the ABL Agent.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
Bankruptcy Financing. If any Grantor becomes Debtor shall become subject to an Insolvency Proceeding and if Revolving Loan Agent and any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed Revolving Loan Lender desires to have consented to, permit the use of any Collateral constituting cash collateral or to provide financing to such Debtor under either Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the U.S. Bankruptcy CodeCode or other applicable statute, Supplemental Loan Agent and Supplemental Loan Lenders agree as follows: (A) adequate notice to Supplemental Loan Agent and Supplemental Loan Lenders shall have been provided for such financing or use of cash collateral if Supplemental Loan Agent receives notice two (2) business days prior to the entry of the order approving such financing or use of cash collateral and (B) no objection will be raised by Supplemental Loan Agent or any comparable provision Supplemental Loan Lender to any such financing or use of any other Bankruptcy Law or pursuant cash collateral on the ground of a failure to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a provide “DIP Financing”), will not request or accept adequate protection protection” for the Liens of Supplemental Loan Agent or any other relief grounds, so long as (1) the interest rate, borrowing base advance rates, lending limits, unused line fee, the letter of credit fee, and other terms are commercially reasonable under the circumstances and, other than with respect to any rate of interest which may be imposed by Revolving Loan Agent or Revolving Loan Lenders after a default under the Revolving Loan Agreement, no greater than as in connection with the use Revolving Loan Agreement as in effect immediately prior to the commencement of such cash collateral or such DIP Financing except as set forth in Section 7.4 below andInsolvency Proceeding, (2) to the extent of the Liens securing the First secured claim of Supplemental Loan Agent against such Debtor, Supplemental Loan Agent receives a replacement Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms post-petition assets of such Debtor as such Liens are subordinated subject to the Liens granted Lien of Supplemental Loan Agent, and with the same priority as existed with respect to First such types of assets, immediately prior to the commencement of such Insolvency Proceeding (including the Lien of the Supplemental Loan Agent hereunder having priority as to the Supplemental Priority Collateral over the Lien of Revolving Loan Agent therein to the extent provided herein), (and 3) such subordination will not alter in any manner financing or use of cash collateral is subject to the terms of this Intercreditor Agreement), to any adequate protection provided and (4) the aggregate principal amount of the Revolving Loan Debt arising before and after the commencement of the Insolvency Proceeding shall not exceed the Maximum Amount (as such term is defined in the Revolving Loan Agreement) that limits the principal amount of the Revolving Loan Debt in effect immediately prior to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; providedcommencement of such Insolvency Proceeding. For purposes of this Section, that:
(i) First Lien Agent does not oppose notice of a proposed financing or object to such use of cash collateral shall be deemed given when given, in the manner prescribed by Section 5.8 hereof, to Supplemental Loan Agent or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agentits counsel.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Penn Traffic Co)
Bankruptcy Financing. If (a) Until the Discharge of Senior-Priority Debt has occurred, if any Grantor becomes shall be subject to any Insolvency or Liquidation Proceeding, until the Discharge of Proceeding and any First Lien Debt has occurredCollateral Agent desires to permit any Grantor (i) to the use of “cash collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code) which constitutes Collateral securing the First Lien Debt or (ii) to enter into financing under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (“DIP Financing”) with any the First Lien Debt Claimholders or any other person in such proceeding, Second then (subject to the terms and conditions set forth in Section 6.4(c) of this Agreement) the Liens securing the Pari Passu Lien AgentDebt on the Collateral may, for itself without any further action or consent by the respective Pari Passu Lien Representative, but subject to the immediately succeeding sentence, be made junior and subordinated to the Liens granted to secure such DIP Financing and each Collateral Trustee, on behalf of itself and the other Second Pari Passu Lien Secured PartiesRepresentatives and the Pari Passu Lien Claimholders with respect to which such Collateral Trustee is acting as Agent, agrees that:
(a) such Second Lien Secured Parties that it will raise no objection toto such use of cash collateral or DIP Financing (unless the Designated First Lien Collateral Agent or the First Lien Debt Claimholders for which such Designated First Lien Collateral Agent is acting as Agent shall then oppose or object to such DIP Financing) so long as (x) such cash collateral use or DIP Financing is on commercially reasonable terms and, nor support any other Person objecting toif required by applicable law, is approved by the Governmental Authority having jurisdiction over such Insolvency Proceeding and (y) such DIP Financing does not compel the Grantors to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in the documents for the DIP Financing, except that such DIP Financing may (A) provide that the plan of reorganization require the Discharge of Senior-Priority Debt (in whole or in part) and (B) require the Grantors to seek confirmation of a plan acceptable to the First Lien Debt Representative and First Lien Claimholders, or entities providing the DIP Financing and contain milestones relating to such plan. To the extent that the Liens securing the First Lien Debt Obligations are subordinated to or on an equal priority basis with the Liens securing DIP Financing which meets the requirements of clauses (x) and (y) above, each Collateral Trustee will subordinate (and will be deemed to have consented to, subordinated) the use of Liens securing the respective Pari Passu Lien Debt on the Collateral to the Liens securing such DIP Financing (and all Obligations relating thereto and to any Collateral constituting cash collateral under Section 363 of “carve-out” agreed to by the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (Debt Collateral Agents or provided by any other Person otherwise applicable thereto) and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with its rights as a holder of Liens on the use of such cash collateral or such DIP Financing Collateral (except as set forth in Section 7.4 below and, to the extent the Liens securing expressly agreed by the First Lien Debt are subordinated to Collateral Agents or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided otherwise permitted by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent6.4),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 1 contract
Samples: Indenture (Unisys Corp)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second each Junior Lien Collateral Agent, for itself and on behalf of the other Second Junior Lien Secured PartiesParties for whom it is acting as agent, agrees that:
(a) a. such Second Junior Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 6.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Junior Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) i. First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) . the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) . the Liens granted to the First Lien Secured Parties in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second . such Junior Lien Collateral Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent),
(v) Second v. such Junior Lien Collateral Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) . such Second Junior Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Junior Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Junior Lien Secured Parties affirmatively state that such Second Junior Lien Secured Parties are undersecured secured creditors; and
(b) b. no such Second Junior Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 1 contract
Bankruptcy Financing. If any Grantor Borrower becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Priority Debt has occurred, Second Lien the Collateral Agent, for itself and on behalf of the other Second Lien Noteholder Secured Parties, agrees that:
: (a) such Second Lien each Noteholder Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any ABL Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law Law, or any post-petition or post-filing financing, financing to any Borrower provided by any First Lien ABL Secured Party or any Qualified Financier (or provided which agrees to be bound by any other Person and consented to by First Lien AgentSection 8 hereof) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 6.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Noteholder Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien the ABL Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien ABL Secured Parties and to any “carve out” agreed to by First Lien AgentCarve Out; provided, provided that:
: (i) First Lien the ABL Agent does not oppose or object to such use of cash collateral or DIP Financing,
, (ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) , together with the ABL Debt as of such date, does not exceed the principal component of the Maximum Priority ABL Debt Amount, and the DIP Financing is treated as First Lien ABL Debt hereunder,
, (iii) the Liens on ABL Collateral granted to the First Lien ABL Secured Parties or Qualified Financier in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien the ABL Agent for purposes hereof,
, (iv) Second Lien the Collateral Agent retains a Lien on the ABL Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” Carve Out agreed to by First Lien the ABL Agent),
, (v) Second Lien the Collateral Agent receives replacement Liens on all assets, including post-petition or post-filing assets assets, of any Grantor Borrower in which any of First Lien the ABL Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien ABL Agent as existed prior to such Insolvency or Liquidation Proceeding, and
and (vi) such Second Lien the Noteholder Secured Parties may oppose or object to such use of Cash Collateral cash collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Noteholder Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until Until the Discharge of First Lien Debt has occurred, if any Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First Lien Agent shall desire to permit the use of “Cash Collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code) which constitutes Second Lien Collateral securing the First Lien Debt or to permit any Grantor to obtain financing from the First Lien Secured Parties under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (“DIP Financing”), then the Second Lien Collateral Agent, for itself and on behalf of itself and the other Second Lien Secured Parties, agrees that:
that it will raise no objection to such Cash Collateral use or DIP Financing, insofar as its rights with respect to the Second Lien Collateral securing the First Lien Debt are affected, so long as (ai) the aggregate principal amount of such DIP Financing, together with the First Lien Debt as of such date, does not exceed the Maximum Priority First Lien Loan Debt, and the DIP Financing is treated as First Lien Debt hereunder, (ii) such Cash Collateral use or DIP Financing is on commercially reasonable terms and, if required by applicable law, is approved by the governmental authority having jurisdiction over such Insolvency or Liquidation Proceeding, (iii) the Second Lien Collateral Agent and the Second Lien Secured Parties will raise no objection to, nor support retain the right to object to any other Person objecting to, ancillary agreements or arrangements regarding such Cash Collateral use or DIP Financing that are materially prejudicial to their interests and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agentiv) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as does not compel any Grantor to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in Section 7.4 below and, the DIP Financing documentation or a related document and the DIP Financing documentation or Cash Collateral order does not expressly require the liquidation of Second Lien Collateral prior to a default under the DIP Financing documentation or Cash Collateral order. To the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP FinancingFinancing which meets the requirements of clauses (i) through (iv) above, the Second Lien Collateral Agent will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such securing the Second Lien Secured Parties Debt in the Second Lien Collateral to the Liens securing such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination all obligations relating thereto) and will not alter in any manner the terms of this Intercreditor Agreement), to any request adequate protection provided to the First Lien Secured Parties and to or any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties other relief in connection with DIP Financing provided by its rights as a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be holder of Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status Collateral (except as secured creditors and in connection with such opposition expressly agreed by the First Lien Agent or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agentextent permitted by Section 6.4).
Appears in 1 contract
Bankruptcy Financing. If any Grantor Debtor becomes subject to any Insolvency or Liquidation ProceedingBankruptcy Event, until the Discharge full and final payment in cash and satisfaction of First Lien Debt all the Credit Agreement Obligations to Credit Agreement Creditors under the Credit Documents has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, FGI agrees that:
(a) such Second Lien Secured Parties it will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Agent Priority Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by Credit Agreement Creditors or any First Lien Secured Party (or provided Person approved by any other Person and consented to by First Lien Agent) Credit Agreement Creditors under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties FGI to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent Credit Agreement Creditors hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties Credit Agreement Creditors and to any “carve out” agreed to by First Lien AgentCredit Agreement Creditors; provided, that:
(i) First Lien Agent does Credit Agreement Creditors do not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties Agent, for and on behalf of itself and Credit Agreement Creditors, or such other person in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent Credit Agreement Creditors for purposes hereof,
(iviii) Second Lien Agent FGI retains a Lien on the Agent Priority Collateral (including proceeds thereof) with the same priority relative to the Liens of Credit Agreement Creditors as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent)Bankruptcy Event,
(viv) Second Lien Agent FGI receives replacement Liens on all post-petition or post-filing assets of any Grantor Debtors in which any of First Lien Agent obtains Credit Agreement Creditors obtain a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent Credit Agreement Creditors as existed prior to such Insolvency or Liquidation ProceedingBankruptcy Event, and
(viv) such Second Lien Secured Parties FGI may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ FGI’s status as a secured creditors creditor and in connection with such opposition or objection, the Second Lien Secured Parties FGI affirmatively state states that such Second Lien Secured Parties are it is an undersecured secured creditorscreditor; and
(b) no such Second Lien Secured Party shallFGI shall not, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien AgentAgent Priority Collateral, without the prior written consent of First Lien Agent, for and on behalf of itself and Credit Agreement Creditors.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (American Biltrite Inc)
Bankruptcy Financing. (i) If any Grantor becomes Loan Party shall become subject to a case under the Bankruptcy Code or any Insolvency or Liquidation Proceeding, until other Debtor Relief Law and such Loan Party moves for approval of (1) DIP Financing with the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf consent of the Required First Out Lenders (or the Administrative Agent acting at the direction of the Required First Out Lenders) (any such provider of DIP Financing, a “DIP Lender”) or (2) the use of “cash collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code, or any similar relief under any other Second Lien Secured Partiesapplicable Debtor Relief Law, agrees that:
“Cash Collateral Use”) with the consent of the Required First Out Lenders (a) such Second Lien Secured Parties will raise or the Administrative Agent acting at the direction of the Required First Out Lenders), no objection to, nor Last Out Holder shall object to or oppose or direct the Administrative Agent to object to or oppose (or support any other Person in objecting toor opposing), and each Last Out Holder will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection Cash Collateral Use; provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii1) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Administrative Agent retains a its Lien on the Collateral to secure the Obligations (in each case, including proceeds thereofthereof arising after the commencement of such Insolvency Proceeding) with the same priority (subject to (A) Section 5 hereof, (B) the Lien and claims securing the DIP Financing and (C) a “carve-out” for estate professional fees and fees owed to the United States Trustee) as existed prior to the commencement of the case under the Bankruptcy Code or any other Debtor Relief Law; and
(2) any such DIP Financing or Cash Collateral Use (A) does not compel any Loan Party to seek confirmation of a specific plan of reorganization or similar disposition plan of restructuring or liquidation (a “Plan”) or (B) does not expressly require the liquidation of all or any portion of the Collateral prior to a default under the DIP Financing Documents or cash collateral order, as applicable (but may include sale or Plan milestones providing for the sale or reorganization of each Loan Party’s business as a going concern); provided that the foregoing shall not limit the ability of the terms of such DIP Financing or Cash Collateral Use to require that it will be an event of default if a Plan is filed that does not provide for the Payment in Full of the First Out Priority Obligations (without the consent of the Required First Out Lenders).
(ii) No Last Out Lender shall offer, nor shall any Last Out Lender permit any of its Affiliates or Related Funds to offer, to provide any DIP Financing to any Loan Party in any Insolvency Proceeding or Liquidation Proceeding propose any Cash Collateral Use in any Insolvency Proceeding.
(except iii) No Last Out Holder shall object to or oppose or direct the extent of Administrative Agent to object to or oppose (or support any Person in objecting or opposing) any professional fee “carve out” agreed to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority similar surcharge to the Liens on the Collateral (including any fees of the United States Trustee) if such fee or surcharge has been approved by the Required First Lien Agent, without the prior written consent of First Lien AgentOut Lenders.
Appears in 1 contract
Bankruptcy Financing. If (a) Until the Discharge of Senior-Priority Debt has occurred, if any Grantor becomes shall be subject to any Insolvency or Liquidation ProceedingProceeding and any Senior-Priority Collateral Agent shall desire to permit the use of “cash collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code) which constitutes Collateral securing the Senior-Priority Debt or to permit any Grantor to obtain financing from the Senior-Priority Secured Parties or any other person under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (“DIP Financing”), until then (subject to the Discharge terms and conditions set forth in Section 6.4(c) of First Lien Debt has occurred, Second Lien this Agreement) each Junior-Priority Collateral Agent, for itself and on behalf of itself and the other Second Lien Junior-Priority Secured PartiesParties with respect to which such Junior-Priority Collateral Agent is acting as Agent, agrees that:
(a) such Second Lien Secured Parties that it will raise no objection toto such use of cash collateral or DIP Financing (unless the Designated Senior-Priority Collateral Agent or the Senior-Priority Secured Parties for which such Designated Senior- Priority Collateral Agent is acting as Agent shall then oppose or object to such DIP Financing) so long as (i) such cash collateral use or DIP Financing is on commercially reasonable terms and, nor support any other Person objecting toif required by applicable Law, is approved by the Governmental Authority having jurisdiction over such Insolvency or Liquidation Proceeding and (ii) the DIP Financing does not compel Grantors to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in the documents for the DIP Financing, except that such DIP Financing may (A) provide that the plan of reorganization require the Discharge of Senior-Priority Debt and (B) require the Grantors to seek confirmation of a plan acceptable to the Senior-Priority Secured Parties or entities providing the DIP Financing and contain milestones relating to such plan. To the extent that the Liens securing the Senior-Priority Debt are subordinated to or on an equal priority basis with the Liens securing DIP Financing which meets the requirements of clauses (i) and (ii) above, each Junior-Priority Collateral Agent will subordinate (and will be deemed to have consented to, subordinated) the use of Liens securing the respective Junior-Priority Debt in the Collateral to the Liens securing such DIP Financing (and all obligations relating thereto and to any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post“carve-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented out” agreed to by First Lien Agentthe Senior-Priority Collateral Agents or otherwise applicable thereto) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), and will not request or accept adequate protection or any other relief in connection with the use its rights as a holder of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with except as expressly agreed by the same priority as existed prior to such Insolvency Senior-Priority Collateral Agents or Liquidation Proceeding (except to the extent of any “carve out” agreed to otherwise permitted by First Lien AgentSection 6.4),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 1 contract
Samples: Senior Junior Lien Intercreditor Agreement (Community Health Systems Inc)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt (other than the First Lien Debt Excess) has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such each Second Lien Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 6.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) , together with the First Lien Debt as of such date, does not exceed the Maximum Priority First Lien Debt, and the DIP Financing is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such the Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such the Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.
Appears in 1 contract
Bankruptcy Financing. If any Grantor ABL Loan Party becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Priority Debt has occurred, Second Lien the Collateral Agent, for itself and on behalf of the other Second Lien Noteholder Secured Parties, agrees that:
(a) such Second Lien each Noteholder Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any ABL Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien ABL Secured Party or any Qualified Financier (or provided which agrees to be bound by any other Person and consented to by First Lien AgentSection 8 hereof) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 6.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Noteholder Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent ABL Lender hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien ABL Secured Parties and to any “carve out” agreed to by First Lien Agentthe ABL Lender; provided, provided that:
(i) First Lien Agent the ABL Lender does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) , together with the ABL Debt as of such date, does not exceed the principal component of Maximum Priority ABL Debt, and the DIP Financing is treated as First Lien ABL Debt hereunder,
(iii) the Liens granted to the First Lien ABL Secured Parties or Qualified Financier in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent ABL Lender for purposes hereof,
(iv) Second Lien the Collateral Agent retains a Lien on the ABL Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agentthe ABL Lender),
(v) Second Lien the Collateral Agent receives replacement Liens on all assets, including post-petition or post-filing assets assets, of any Grantor ABL Loan Party in which any of First Lien Agent the ABL Lender obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent ABL Lender as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien the Noteholder Secured Parties may oppose or object to such use of Cash Collateral cash collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Noteholder Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and.
(b) no such Second Lien Noteholder Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the ABL Collateral of First Lien AgentABL Lender, without the prior written consent of First Lien AgentABL Lender.
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Vector Group LTD)
Bankruptcy Financing. If any Grantor becomes subject Until the Senior Indebtedness has been Finally Paid, in the event an Insolvency Proceeding shall occur and be continuing, Subordinated Lender hereby (i) expressly consents to any Insolvency or Liquidation Proceeding, until the Discharge granting by Borrower to Senior Lender of First Lien Debt has occurred, Second Lien Agent, for itself senior liens and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or priorities in connection with any post-petition or post-filing financing, financing of Borrower by Senior Lender and (ii) agrees that adequate notice of such financing to Subordinated Lender shall have been provided by any First Lien Secured Party if Subordinated Lender received notice in accordance with Section 18 hereof two (or provided by any other Person and consented 2) Business Days prior to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision entry of any other Bankruptcy Law order approving such cash collateral usage or pursuant financing. Provided that Senior Lender does not object to an order granted the granting of a junior replacement lien in favor of Subordinated Lender, Subordinated Lender agrees not to assert any right it may have to "adequate protection" of its interest in such security in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), and agrees that it will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder seek to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply automatic stay lifted with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties security, in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Agent retains a Lien on the Collateral (including proceeds thereof) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, each case without the prior written consent of First Lien AgentSenior Lender. Subordinated Lender waives any claim or defense Subordinated Lender may now or hereafter have arising out of the election by the Senior Lender in any Insolvency Proceeding instituted under Chapter 11 of the Bankruptcy Code of any use of cash collateral, any borrowing or any grant of a security interest under Sections 363 and/or 364 of the Bankruptcy Code by Borrower, as debtor-in-possession. To the extent that Senior Lender receives payments on, or proceeds of Collateral for, the Senior Indebtedness which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law, or equitable cause, then as between Senior Lender and Subordinated Lender hereunder, to the extent of such payment or proceeds received, the Senior Indebtedness, or part thereof, intended to be satisfied shall be revived and continue in full force and effect as if such payments or proceeds had not been received by the Senior Lender.
Appears in 1 contract
Samples: Subordination and Intercreditor Agreement (Tyler Corp /New/)
Bankruptcy Financing. (a) If any Grantor becomes Obligor shall become subject to any Insolvency or Liquidation Proceeding, until to include a case under the Discharge U.S. Bankruptcy Code and if as debtor(s)-in-possession move for approval of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf financing to be provided in good faith by GMAC Facility Agent and/or any of the other Second Lien Secured Parties, agrees that:
GMAC Facility Lenders (a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented tocollectively, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent“DIP Lender”) under Section 364 of the U.S. Bankruptcy Code, Code or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) with the consent of the DIP Financing (to Lender under Section 363 of the extent provided U.S. Bankruptcy Code, Note Agent, on behalf of Noteholders, agrees that no objection will be raised by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect Noteholders to any such DIP Financing) is treated financing on the grounds of a failure to provide “adequate protection” for the Liens of Note Agent so long as First Lien Debt hereunder,
(iiiA) the Liens granted to interest rate, fees, advance rates, lending sublimits and limits and other terms are commercially reasonable under the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
circumstances, (ivB) Second Lien Note Agent retains a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of such proceeding) with the same priority as existed prior to such Insolvency or Liquidation Proceeding (except the commencement of the case under the U.S. Bankruptcy Code, which for avoidance of doubt is a subordinate Lien to the extent Lien of the GMAC Facility Agent in the Working Capital Collateral securing the GMAC Facility Debt, including any “carve out” agreed to by First Lien Agent),
debtor-in-possession financing which complies with this Section 4.5, (vC) Second Lien Note Agent receives a replacement Liens Lien on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure to the same extent granted to the DIP FinancingLender, with the same priority relative to the Liens of First Lien Agent as existed prior to the commencement of the case under the U.S. Bankruptcy Code, which for avoidance of doubt is a subordinate Lien to the Lien of the GMAC Facility Agent in the Working Capital Collateral securing the GMAC Facility Debt, including any debtor-in-possession financing which complies with this Section 4.5, (D) neither the GMAC Facility Agent or any Lender (including the DIP Lender) shall receive any Liens (including replacement Liens) on any post-petition assets constituting Note Collateral (including proceeds of any assets constituting Note Collateral arising after the commencement of the proceeding in connection with such Insolvency or Liquidation Proceeding, and
Proceedings) unless such Liens are subordinated to the Liens (viincluding replacement Liens) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the Agent with the same bases priority as an unsecured creditor, so long as such opposition or objection is not based on existed prior to the Second Lien Secured Parties’ status as secured creditors and commencement of the proceeding in connection with such opposition Insolvency or objectionLiquidation Proceedings pursuant to the terms of this Intercreditor Agreement, (E) the Second Lien Secured Parties affirmatively state that aggregate principal amount of loans and letter of credit accommodations outstanding under such Second Lien Secured Parties are undersecured secured creditors; andpost-petition financing, together with the aggregate principal amount of the pre-petition GMAC Facility Debt shall not exceed the Maximum GMAC Facility Debt, and (F) as between the GMAC Facility Agent and the GMAC Facility Lenders, on the one hand, and the Note Agent and the Noteholders, on the other hand, such financing or use of cash collateral is subject to the terms of this Intercreditor Agreement.
(b) no such Second Lien Secured Party shall, directly Nothing contained herein shall be deemed to limit the rights of the Noteholders to object to post-petition financing or indirectly, provide, or seek use of cash collateral on any grounds other than the failure to provide, DIP Financing secured by Liens equal or senior in priority to provide “adequate protection” for the Liens on of the Collateral of First Lien Agent, without the prior written consent of First Lien Note Agent.
(c) For purposes of this Section 4.5, notice of a proposed financing or use of cash collateral shall be deemed given when given in accordance with Section 4.7.
Appears in 1 contract
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support If any other Person objecting to, and will be deemed Obligor shall become subject to have consented to, the use of any Collateral constituting cash collateral a case under Section 363 of the Bankruptcy CodeCode and if as a debtor-in-possession, or any comparable provision such Obligor moves for approval of any other Bankruptcy Law or any post-petition or post-filing financing, financing to be provided in good faith by any First Lien Secured Party Working Capital Agent (or provided by any other Person and consented to by First Lien Agentthe "DIP Lender") under Section 364 of the Bankruptcy Code, Code or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral with the consent of the DIP Lender under Section 363 of the Bankruptcy Code or DIP Financing,
any similar provisions under applicable law, Term Loan Agent agrees that no objection will be raised by Term Loan Agent or Term Loan Lenders to any such financing on the grounds of a failure to provide "adequate protection" for the Liens of Term Loan Agent so long as (i) the interest rate, fees, advance rates, lending sublimits and limits and other terms are commercially reasonable under the circumstances, (ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Term Loan Agent retains a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of such proceeding) with the same priority as existed prior to such Insolvency or Liquidation Proceeding the commencement of the case under the Bankruptcy Code, (except to the extent of any “carve out” agreed to by First Lien Agent),
(viii) Second Lien Term Loan Agent receives a replacement Liens Lien on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure to the same extent granted to the DIP FinancingLender, with the same priority relative to the Lien of the DIP Lender as the priority of the Term Loan Agent's Lien on the Collateral relative to the Working Capital Agent's Lien prior to the commencement of the case under the Bankruptcy Code, (iv) the aggregate principal amount of loans and letter of credit accommodations outstanding under such post-petition financing, together with the aggregate principal amount of the pre-petition Working Capital Debt shall not exceed the Maximum W/C Debt, and (v) such financing or use of cash collateral is subject to the terms of this Intercreditor Agreement, including without limitation Section 2.13 hereof.
(b) Nothing contained herein shall be deemed to limit the rights of Term Loan Agent or Term Loan Lenders to object to post-petition financing or use of cash collateral on any grounds other than the failure to provide "adequate protection" for the Liens of First Lien Term Loan Agent as existed prior or to object on grounds of a failure to provide "adequate protection" to the extent such financing or use of cash collateral does not comply with clause (a) of this Section 4.5.
(c) If any Obligor shall become subject to a case under the Bankruptcy Code (in such capacity, a "Debtor"), Term Loan Agent agrees that neither Term Loan Lender nor the Term Loan Lenders will provide to such Insolvency Debtor as debtor-in-possession any financing under Section 364(d) of the Bankruptcy Code to the extent that Term Loan Agent or Liquidation Proceedingany Term Loan Lender would, and
(vi) such Second Lien Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition financing, be granted a priming or objection, pari passu Lien on the Second Lien Secured Parties affirmatively state that pre-petition Collateral of such Second Lien Secured Parties are undersecured secured creditors; andDebtor.
(bd) no such Second Lien Secured Party shallFor purposes of this Section 4.5, directly notice of a proposed financing or indirectlyuse of cash collateral shall be deemed given when given, provide, or seek to provide, DIP Financing secured in the manner prescribed by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien AgentSection 4.7 hereof.
Appears in 1 contract
Samples: Intercreditor Agreement (International Wire Group Inc)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, If the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, Borrower or any comparable provision Obligor shall become subject to a case under the U.S. Bankruptcy Code and if as debtor(s)-in-possession move for approval of any other Bankruptcy Law or any post-petition or post-filing financing, financing to be provided in good faith by any First Senior Lien Secured Party Creditors (or provided by any other Person and consented to by First Lien Agentthe "DIP Lender") under Section 364 of the U.S. Bankruptcy Code, Code or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or with the consent of the DIP Financing,
Lender under Section 363 of the U.S. Bankruptcy Code, Revolving B Loan Creditors agree that no objection will be raised by Revolving B Loan Creditors to any such financing on the grounds of a failure to provide "adequate protection" for the Liens of Revolving B Loan Creditors so long as (i) the interest rate, fees, advance rates, lending sublimits and limits and other terms are commercially reasonable under the circumstances, (ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Revolving B Loan Agent retains a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of such proceeding) with the same priority as existed prior to such Insolvency or Liquidation Proceeding the commencement of the case under the U.S. Bankruptcy Code, (except to the extent of any “carve out” agreed to by First Lien Agent),
(viii) Second Lien Revolving B Loan Agent receives a replacement Liens Lien on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure to the same extent granted to the DIP FinancingLender, with the same priority relative to the Liens of First Lien Agent as existed prior to the commencement of the case under the U.S. Bankruptcy Code, (iv) the aggregate principal amount of loans and letter of credit accommodations outstanding under such Insolvency or Liquidation Proceedingpost-petition financing, and
together with the aggregate principal amount of the pre-petition Senior Lien Debt shall not exceed the Maximum Senior Lien Debt, and (viv) such Second Lien Secured Parties may oppose financing or object to such use of Cash Collateral or DIP Financing on cash collateral is subject to the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; andterms of this Agreement.
(b) no such Second Lien Secured Party shall, directly Nothing contained herein shall be deemed to limit the rights of the Revolving B Loan Creditors to object to post-petition financing or indirectly, provide, or seek use of cash collateral on any grounds other than the failure to provide, DIP Financing secured by Liens equal or senior in priority to provide "adequate protection" for the Liens on of the Collateral of First Lien Agent, without the prior written consent of First Lien Revolving B Loan Agent.
(c) For purposes of this Section, notice of a proposed financing or use of cash collateral shall be deemed given when given, in the manner prescribed by Section 5.7 hereof.
Appears in 1 contract
Samples: Intercreditor Agreement (Anchor Glass Container Corp /New)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, If the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, Borrower or any comparable provision Obligor shall become subject to a case under the U.S. Bankruptcy Code and if as debtor(s)-in-possession move for approval of any other Bankruptcy Law or any post-petition or post-filing financing, financing to be provided in good faith by any First Lien Secured Party Revolving Loan Creditors (or provided by any other Person and consented to by First Lien Agentthe "DIP Lender") under Section 364 of the U.S. Bankruptcy Code, Code or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or with the consent of the DIP Financing,
Lender under Section 363 of the U.S. Bankruptcy Code, Term Loan Creditors agree that no objection will be raised by Term Loan Creditors to any such financing on the grounds of a failure to provide "adequate protection" for the Liens of Term Loan Creditors so long as (i) the interest rate, fees, advance rates, lending sublimits and limits and other terms are commercially reasonable under the circumstances, (ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Term Loan Agent retains a Lien on the Collateral (including proceeds thereofthereof arising after the commencement of such proceeding) with the same priority as existed prior to such Insolvency or Liquidation Proceeding the commencement of the case under the U.S. Bankruptcy Code, (except to the extent of any “carve out” agreed to by First Lien Agent),
(viii) Second Lien Term Loan Agent receives a replacement Liens Lien on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure to the same extent granted to the DIP FinancingLender, with the same priority relative to the Liens of First Lien Agent as existed prior to the commencement of the case under the U.S. Bankruptcy Code, (iv) the aggregate principal amount of loans and letter of credit accommodations outstanding under such Insolvency or Liquidation Proceedingpost-petition financing, and
together with the aggregate principal amount of the pre-petition Revolving Loan Debt shall not exceed the Maximum Revolving Loan Debt, and (viv) such Second Lien Secured Parties may oppose financing or object to such use of Cash Collateral or DIP Financing on cash collateral is subject to the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; andterms of this Agreement.
(b) no such Second Lien Secured Party shall, directly Nothing contained herein shall be deemed to limit the rights of the Term Loan Creditors to object to post-petition financing or indirectly, provide, or seek use of cash collateral on any grounds other than the failure to provide, DIP Financing secured by Liens equal or senior in priority to provide "adequate protection" for the Liens on of the Collateral of First Lien Agent, without the prior written consent of First Lien Term Loan Agent.
(c) For purposes of this Section, notice of a proposed financing or use of cash collateral shall be deemed given when given, in the manner prescribed by Section 6.6 hereof.
Appears in 1 contract
Samples: Collateral Agency and Intercreditor Agreement (Anchor Glass Container Corp /New)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that:
(a) such Second Lien Secured Parties will raise no objection toany Borrower or any Obligor shall become subject to a proceeding under the United States Bankruptcy Code and (b) the Revolving Loan Agent or, nor support any other Person objecting tosubject to the terms of the Senior Intercreditor Agreement, and will be deemed the Term Loan Agent desires to have consented to, permit the use of any Collateral constituting cash collateral or to provide financing to such Borrower or such Obligor under either Section 363 or 364 of the United States Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Collateral Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, agrees that:
: (i) First Lien Agent does not oppose or object adequate notice to the Indenture Parties shall have been provided for such use of cash collateral or DIP Financing,
such financing if the Collateral Agent receives notice five Business Days prior to the entry of the order approving such use of cash collateral or such financing; and (ii) no objection will be raised by any Indenture Party to any such financing on the DIP Financing (ground of a failure to provide “adequate protection” for the extent provided by a First Lien Secured Party, provided that Liens of the restrictions set forth in Section 10.4 hereof shall not apply Indenture Parties on the Indenture Collateral or any other grounds with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to Indenture Collateral; provided, however, that the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens Collateral Agent, for the benefit of First Lien Agent for purposes hereof,
(iv) Second Lien Agent the Indenture Parties, retains a Lien on the post-petition Indenture Collateral (including proceeds thereof) with the same priority as its Lien on the Indenture Collateral that existed prior to such Insolvency the commencement of the proceeding under the United States Bankruptcy Code. Nothing in this Section 3.5 shall be deemed to prohibit any Indenture Party from providing financing to any Borrower or Liquidation Proceeding (except to any Obligor in any proceeding under the extent United States Bankruptcy Code so long as any Lien on the Collateral in favor of any “carve out” agreed Indenture Party with respect to by First Lien Agent),
(v) Second Lien Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, with such financing has the same priority relative to as the Liens Lien in favor of First Lien Agent as the Collateral Agent, for the benefit of the Indenture Parties, on the Collateral that existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien Secured Parties may oppose or object to such use the commencement of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on proceeding under the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and
(b) no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.United
Appears in 1 contract
Bankruptcy Financing. (i) If any Grantor becomes Loan Party shall become subject to a case under the Bankruptcy Code or any Insolvency or Liquidation Proceeding, until other Debtor Relief Law and such Loan Party moves for approval of (1) DIP Financing with the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf consent of the Required First Out Lenders (or the Administrative Agent acting at the direction of the Required First Out Lenders) (any such provider of DIP Financing, a “DIP Lender”) or (2) the use of “cash collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code, or any similar relief under any other Second Lien Secured Partiesapplicable Debtor Relief Law, agrees that:
herein, “Cash Collateral Use”) with the consent of the Required First Out Lenders (a) such Second Lien Secured Parties will raise or the Administrative Agent acting at the direction of the Required First Out Lenders), no objection to, nor Last Out Lender shall object to or oppose or direct the Administrative Agent to object to or oppose (or support any other Person in objecting toor opposing), and each Last Out Lender will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection Cash Collateral Use; provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:
(i) First Lien Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii1) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any such DIP Financing) is treated as First Lien Debt hereunder,
(iii) the Liens granted to the First Lien Secured Parties in connection with DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Agent for purposes hereof,
(iv) Second Lien Administrative Agent retains a its Lien on the Collateral to secure the Obligations (in each case, including proceeds thereofthereof arising after the commencement of such Insolvency Proceeding) with the same priority (subject to (A) Section 5 hereof, (B) the Lien and claims securing the DIP Financing and (C) a professional fee “carve-out” or fees owed to the United States Trustee) as existed prior to such Insolvency the commencement of the case under the Bankruptcy Code or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent),other Debtor Relief Law;
(v2) Second Lien the Administrative Agent receives replacement or additional Liens or other similar relief under any applicable Debtor Relief Law to secure the Last Out Obligations on all post-petition assets to the same extent granted in connection with the Cash Collateral Use or post-filing assets of any Grantor in which any of First Lien Agent obtains a replacement Lien, or which secure the DIP Financing, Financing with the same priority relative (subject to (A) Section 5 hereof, (B) the Lien and claims securing the DIP Financing and (C) a professional fee “carve-out” or fees owed to the Liens of First Lien Agent United States Trustee) as existed prior to the commencement of the case under the Bankruptcy Code or any other Debtor Relief Law;
(3) any such Insolvency DIP Financing or Liquidation ProceedingCash Collateral Use (A) does not compel any Loan Party to seek confirmation of a specific plan of reorganization or similar disposition plan of restructuring or liquidation (a “Plan”) or (B) does not expressly require the liquidation of all or any portion of the Collateral prior to a default under the DIP Financing Documents or cash collateral order, as applicable (but may include sale or Plan milestones providing for the sale or reorganization of each Loan Party’s business as a going concern); provided that the foregoing shall not limit the ability of the terms of such DIP Financing or Cash Collateral Use to require that it will be an event of default if a Plan is filed that does not provide for the Payment in Full of the First Out Priority Obligations (without the consent of the First Out Lenders);
(4) the aggregate amount of the obligations owed or, in the case of unfunded commitments, that could be owed, to the DIP Lenders in respect of such DIP Financing, when aggregated (without duplication) with the amount of the First Out Obligations outstanding as of the commencement of a case under the Bankruptcy Code or any other Debtor Relief Law, does not exceed the Maximum First Out Amount; and
(vi5) solely with respect to any DIP Financing, the priority of payment of such Second Lien Secured Parties DIP Financing shall not be both junior in right of payment to the First Out Obligations and simultaneously senior or pari passu in right of payment to the Last Out Obligations.
(ii) No Last Out Lender shall offer, nor shall any Last Out Lender permit any of its Affiliates or Related Funds to offer, to provide any DIP Financing to any Loan Party in any Insolvency Proceeding so long as the Required First Out Lenders have approved DIP Financing that complies with the proviso to Section 3(c)(i). No Last Out Lender shall propose, nor shall any Last Out Lender permit any of its Affiliates or Related Funds to propose, any Cash Collateral Use in any Insolvency Proceeding so long as the Required First Out Lenders have approved any Cash Collateral Use that complies with the proviso to Section 3(c)(i). Subject to Section 3(c)(iii), any Last Out Lender may (1) object to or oppose or direct the Administrative Agent to object to such use or oppose (or support any Person in objecting or opposing) any Use of Cash Collateral or DIP Financing on that does not comply with the same bases as an unsecured creditorterms of Section 3(c) or (2) to the extent the Required First Out Lenders have not approved DIP Financing or Cash Collateral Use that complies with the proviso to Section 3(c)(i), so long as such opposition offer to provide DIP Financing or objection is not based on Cash Collateral Use that complies with the Second Lien Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; andproviso to Section 3(c)(i).
(biii) If any First Out Priority Obligations would remain outstanding after the application of any DIP Financing, no such Second Lien Secured Party shall, directly Last Out Lender (or indirectly, any Affiliate or Related Fund of a Last Out Lender) shall offer to provide, or seek to provide, any DIP Financing that would be secured by a Lien on any Collateral senior or pari passu with the Lien of the Administrative Agent on such Collateral securing the First Out Obligations unless (1) the repayment of such DIP Financing is junior in right of payment to the First Out Priority Obligations (including any DIP Financing provided by the First Out Lenders (or one or more Affiliates or Related Funds of First Out Lenders) or consented to by the Required First Out Lenders, (2) the Liens equal securing such DIP Financing are junior to the Liens of the Administrative Agent to the extent securing the First Out Priority Obligations (including any DIP Financing provided by the First Out Lenders (or senior one or more Affiliates or Related Funds of First Out Lenders) or consented to by the Required First Out Lenders, (3) the proceeds of such DIP Financing are not used to repay any Obligations except in priority accordance with this Agreement and (A) the aggregate amount of the obligations owed or, in the case of unfunded commitments, that could be owed, to the DIP Lenders in respect of such DIP Financing, when aggregated (without duplication) with the amount of the Last Out Obligations outstanding as of the commencement of a case under the Bankruptcy Code or any other Debtor Relief Law, does not exceed the Maximum Last Out Amount.
(iv) No Last Out Lender shall object to or oppose or direct the Administrative Agent to object to or oppose (or support any Person in objecting or opposing) any professional fee “carve out” or similar surcharge to the Liens on the Collateral (including any fees of the United States Trustee) if such fee or surcharge has been approved by the Required First Lien Agent, without the prior written consent of First Lien AgentOut Lenders.
Appears in 1 contract
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Revolving Loan Debt has occurred, Second Lien the Term Loan Agent, for itself and on behalf of the other Second Lien Term Loan Secured Parties, agrees that:
(a) such Second Lien each Term Loan Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Revolving Loan Priority Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by Revolving Loan Agent or any First Lien Secured Party Person approved by Revolving Loan Agent (or provided which agrees to be bound by any other Person and consented to by First Lien AgentSection 8 hereof) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 the proviso immediately below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Term Loan Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Revolving Loan Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Revolving Loan Secured Parties and to any “carve out” agreed to by First Lien the Revolving Loan Agent; provided, provided that:
(i) First Lien the Revolving Loan Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) , together with the Revolving Loan Debt as of such date, does not exceed the Maximum Priority Revolving Loan Debt, and the DIP Financing is treated as First Lien Revolving Loan Debt hereunder,
(iii) the Liens granted to the First Lien Revolving Loan Secured Parties or such other person in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Revolving Loan Agent for purposes hereof,
(iv) Second Lien the Term Loan Agent retains a Lien on the Revolving Loan Priority Collateral (including proceeds thereof) with the same priority relative to the Liens of Revolving Loan Agent as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent)Proceeding,
(v) Second Lien the Term Loan Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien the Revolving Loan Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Revolving Loan Agent as existed prior to such Insolvency or Liquidation Proceeding,
(vi) the Revolving Loan Secured Parties do not establish or require a timetable for the disposition of all or substantially all of any Grantor’s assets and properties within a specific time period in violation of Section 3.1(b)(vii) hereof, and
(vivii) such Second Lien the Term Loan Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Term Loan Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Secured Parties affirmatively state that such Second Lien Secured Parties are undersecured secured creditors; and.
(b) no such Second Lien No Term Loan Secured Party shall, directly or indirectly, provide, or seek to provide, provide DIP Financing secured by Liens equal to or senior in priority to the Liens on the Revolving Loan Priority Collateral of First Lien Revolving Loan Agent, without the prior written consent of First Lien Revolving Loan Agent; provided, that, any fund or similar investment vehicle managed or advised by DDJ Capital Management, LLC that invests in commercial loans may seek to provide postpetition financing under Section 364 of the Bankruptcy Code or any comparable provisions of any other Bankruptcy Law so long as:
(i) As a condition of such financing, all proceeds of Revolving Loan Priority Collateral shall either be (A) be remitted to Revolving Loan Agent for application to the Revolving Loan Debt up to the Maximum Priority Revolving Loan Debt or (B) used by Borrowers subject to terms and conditions acceptable to Revolving Loan Agent, including without limitation, that all use of cash collateral shall be subject to the same Availability criteria as set forth in the Revolving Loan Agreement (provided, that, the calculation of such Availability during the Insolvency Proceeding shall be calculated by the Revolving Loan Agent in the same manner as if the Revolving Loan Agent and Revolving Loan Lenders were providing DIP Financing to Borrowers pursuant to Section 6.2(a) above, which shall include among other things, a Reserve in the amount of any professional fee carve out or similar priority administrative claims) and used in accordance with a budget (in form and substance reasonably acceptable to Revolving Loan Agent), with any cash collateral in excess of the amounts necessary to fund the expenses for any applicable period in the budget being remitted to Revolving Loan Agent for application against the Revolving Loan Debt up to the Maximum Priority Revolving Loan Debt,
(ii) the aggregate principal amount of such post-petition financing to be provided pursuant to this Section 6.2(b) under Section 364 of the Bankruptcy Code or any comparable provisions of any other Bankruptcy Law shall be in an amount of not less than $10,000,000 but when taken together with the outstanding Term Loan Debt as of such date shall not exceed the Maximum Priority Term Loan Debt, plus $20,000,000 (the $20,000,000 being subject to a dollar-for-dollar reduction equal to any increase in the principal amount of the Term Loans after the date hereof but prior to the commencement of any case with respect to any Grantor under the Bankruptcy Code or any other Insolvency or Liquidation Proceeding),
(iii) no portion of the Revolving Loan Priority Collateral shall be used to repay the Term Loan Debt outstanding as of the date of the commencement of any Insolvency or Liquidation Proceeding or any Term Loan Debt incurred thereafter pursuant to any financing to be provided pursuant to this Section 6.2(b), whether such payments are approved by the Bankruptcy Court or otherwise prior to the repayment of the Revolving Loan Debt up to the Maximum Priority Revolving Loan Debt,
(iv) such financing is secured by Liens junior in priority to the Liens on the Revolving Loan Priority Collateral of the Revolving Loan Agent, and
(v) the Revolving Loan Agent, for itself or on behalf of the other Revolving Loan Secured Parties, shall be granted adequate protection pursuant to an order of the Bankruptcy Court (in form and substance satisfactory to Revolving Loan Agent) in the form of (A) additional or replacement Liens on the Collateral (including proceeds thereof arising after the commencement of any Insolvency or Liquidation Proceeding), with such Liens being subject to the priority provisions of Section 2.2 hereof, (B) a super-priority administrative expense claim for any diminution in the value of the Collateral, (C) all reporting notices and inspection rights granted to the Revolving Loan Agent and Revolving Loan Lenders pursuant to and in accordance with the Revolving Loan Documents, and (D) payment of all interest that accrues post-petition and fees or expenses that are incurred post-petition pursuant to the Revolving Loan Documents as and when due under the Revolving Loan Documents to the Revolving Loan Agent or any other Revolving Loan Secured Party.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Bankruptcy Financing. If any Grantor becomes subject to any Insolvency or Liquidation Proceeding, until the Discharge of First Lien Revolving Loan Debt has occurred, Second Lien the Term Loan Agent, for itself and on behalf of the other Second Lien Term Loan Secured Parties, agrees that:
(a) such Second Lien each Term Loan Secured Parties Party will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Revolving Loan Priority Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by Revolving Loan Agent or any First Lien Secured Party Person approved by Revolving Loan Agent (or provided which agrees to be bound by any other Person and consented to by First Lien AgentSection 8 hereof) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 the proviso immediately below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, and will subordinate (and will be deemed hereunder to have subordinated) the Liens granted to such Second Lien Term Loan Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Revolving Loan Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Revolving Loan Secured Parties and to any “carve out” agreed to by First Lien the Revolving Loan Agent; provided, provided that:
(i) First Lien the Revolving Loan Agent does not oppose or object to such use of cash collateral or DIP Financing,
(ii) the DIP Financing (to the extent provided by a First Lien Secured Party, provided that the restrictions set forth in Section 10.4 hereof shall not apply with respect to any aggregate principal amount of such DIP Financing) is treated , together with the Revolving Loan Debt as First Lien Debt hereunderof such date, does not exceed the Maximum Priority Revolving Loan Debt,
(iii) the Liens granted to the First Lien Revolving Loan Secured Parties or such other person in connection with such DIP Financing provided by a First Lien Secured Party are subject to this Intercreditor Agreement and considered to be Liens of First Lien Revolving Loan Agent for purposes hereof,
(iv) Second Lien the Term Loan Agent retains a Lien on the Revolving Loan Priority Collateral (including proceeds thereof) with the same priority relative to the Liens of Revolving Loan Agent as existed prior to such Insolvency or Liquidation Proceeding (except to the extent of any “carve out” agreed to by First Lien Agent)Proceeding,
(v) Second Lien the Term Loan Agent receives replacement Liens on all post-petition or post-filing assets of any Grantor in which any of First Lien the Revolving Loan Agent obtains a replacement Lien, or which secure the DIP Financing, with the same priority relative to the Liens of First Lien Revolving Loan Agent as existed prior to such Insolvency or Liquidation Proceeding, and
(vi) such Second Lien the Term Loan Secured Parties may oppose or object to such use of Cash Collateral or DIP Financing on the same bases as an unsecured creditor, so long as such opposition or objection is not based on the Second Lien Term Loan Secured Parties’ status as secured creditors and in connection with such opposition or objection, the Second Lien Term Loan Secured Parties affirmatively state that such Second Lien the Term Loan Secured Parties are undersecured secured creditors; and.
(b) no such Second Lien No Term Loan Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien the Revolving Loan Agent.
Appears in 1 contract
Samples: Intercreditor Agreement (Frederick's of Hollywood Group Inc /Ny/)
