Common use of Finance and Sale Issues – First Lien Obligations Clause in Contracts

Finance and Sale Issues – First Lien Obligations. Until the Discharge of First Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Directing First Lien Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Notes Priority Collateral or to permit the Company or any other Grantor to obtain financing, whether from the First Lien Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Debtor Relief Law that is secured by a Lien that is (i) senior or pari passu with the Liens on the Notes Priority Collateral securing the First Lien Priority Obligations, and (ii) junior to the Liens on the Revolving Facility Priority Collateral securing the Revolving Facility Priority Obligations (each, a “First Lien DIP Financing”), then (x) if any Additional Second Lien Obligations have been issued, each of the Second Lien Security Agent, on behalf of itself and the other Second Lien Secured Parties, and (y) the Revolving Facility Agent, on behalf of itself and the other Revolving Facility Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting Notes Priority Collateral or such First Lien DIP Financing and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the Directing First Lien Security Agent or to the extent permitted by Section 3.5(c)) and, the Second Lien Security Agent and the Revolving Facility Agent will each subordinate its Liens in the Notes Priority Collateral to the Liens securing such First Lien DIP Financing (and all interest and other obligations relating thereto); provided that (A) the aggregate principal amount of the First Lien DIP Financing plus the aggregate outstanding principal amount of First Lien Obligations for borrowed money under the First Lien Documents plus the aggregate face amount of any letters of credit issued and not reimbursed under the First Lien Documents shall not exceed the First Lien Debt Cap and (B) (i) each of the Revolving Facility Agent and the other Revolving Facility Secured Parties and, if any Additional Second Lien Obligations have been issued, the Second Lien Security Agent and the other Second Lien Secured Parties, retain a Lien on the Collateral to secure the Revolving Facility Priority Obligations and the Second Lien Priority Obligations, as the case may be, and, with respect to the Revolving Facility Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the First Lien Security Agent is granted adequate protection in the form of a Lien, the Revolving Facility Agent and, if any Additional Second Lien Obligations are issued, the Second Lien Security Agent are permitted to seek a Lien (without objection from the First Lien Security Agent or any First Lien Secured Party) on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding (so long as, with respect to Notes Priority Collateral, such Lien is junior to the Liens securing such First Lien DIP Financing and the First Lien Priority Obligations), (iii) the foregoing provisions of this Section 3.5(a) shall not prevent the Revolving Facility Agent and the Revolving Facility Secured Parties from objecting to any provision in any DIP Financing relating to any provision or content of a plan of reorganization or other plan of similar effect under any Debtor Relief Laws that are inconsistent with this Agreement and (iv) the terms of such First Lien DIP Financing or use of cash collateral do not require any Grantor to seek any approval for any plan of reorganization or other plan of similar effect under any Debtor Relief Laws that is inconsistent with the terms of this Agreement. Each of the Revolving Facility Agent, on behalf of the Revolving Facility Secured Parties, and, if any Additional Second Lien Obligations have been issued, the Second Lien Security Agent, on behalf of the Second Lien Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any Notes Priority Collateral free and clear of its Liens (subject to attachment of Proceeds with respect to the Second Priority Lien on the Notes Priority Collateral in favor of the Second Lien Security Agent (if any Additional Second Lien Obligations have been issued) and the Third Priority Lien (or, if any Additional Second Lien Obligations have not been issued, the Second Priority Lien) on the Notes Priority Collateral in favor of the Revolving Facility Agent, respectively, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Second Lien Secured Party or Revolving Facility Secured Party, as the case may be, as an unsecured creditor in any such Insolvency or Liquidation Proceeding, if the First Lien Secured Parties have consented to such sale or disposition of such assets; provided that the foregoing shall not prohibit the Second Lien Security Agent, the other Second Lien Secured Parties, the Revolving Facility Agent and the other Revolving Facility Secured Parties from seeking and exercising credit bid rights pursuant to Section 363(k) of the Bankruptcy Code in respect of any such sale or disposition; provided, further that such credit bid may only be made if Discharge of First Lien Obligations (and, in the case of a credit bid by the Revolving Facility Agent or the other Revolving Facility Secured Parties, Discharge of Second Lien Obligations if any Additional Second Lien Obligations have been issued) has occurred or will occur concurrently as a result of a cash bid for such Notes Priority Collateral in addition to such credit bid.

Finance and Sale Issues – First Lien Obligations. Until After the Discharge of Revolving Facility Obligations has occurred and until the Discharge of First Lien Obligations has occurredoccurred and to the extent any Additional Second Lien Obligations have been issued, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Directing First Lien Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Notes Revolving Facility Priority Collateral or to permit the Company or any other Grantor to obtain financing, whether from the First Lien Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Debtor Relief Law Law, that is secured by a Lien that is (i) senior or pari passu with the Liens on the Notes Revolving Facility Priority Collateral securing the First Lien Priority Obligations, Obligations and (ii) junior to the Liens on the Revolving Facility Notes Priority Collateral securing the Revolving Facility Second Lien Priority Obligations (each, a “First Lien Revolving Facility Priority Collateral DIP Financing”), then (x) if any Additional Second Lien Obligations have been issued, each of the Second Lien Security Agent, on behalf of itself and the other Second Lien Secured Parties, and (y) the Revolving Facility Agent, on behalf of itself and the other Revolving Facility Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting Notes Revolving Facility Priority Collateral or such First Lien Revolving Facility Priority Collateral DIP Financing and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the Directing First Lien Security Agent or to the extent permitted by Section 3.5(c4.5(d)) and, the Second Lien Security Agent and the Revolving Facility Agent will each subordinate its Liens in the Notes Revolving Facility Priority Collateral to the Liens securing such First Lien Revolving Facility Priority Collateral DIP Financing (and all interest and other obligations relating thereto); provided that (A) the aggregate principal amount of the First Lien Revolving Facility Priority Collateral DIP Financing plus the aggregate outstanding principal amount of First Lien Obligations for borrowed money under the First Lien Documents plus the aggregate face amount of any letters of credit issued and not reimbursed under the First Lien Documents shall not exceed the First Lien Debt Cap and (B) (i) each of the Revolving Facility Agent and the other Revolving Facility Secured Parties and, if any Additional Second Lien Obligations have been issued, the Second Lien Security Agent and the other Second Lien Secured Parties, Parties retain a Lien on the Collateral to secure the Revolving Facility Priority Obligations and the Second Lien Priority Obligations, as the case may berespectively, and, with respect to the Revolving Facility Notes Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the First Lien Security Agent is granted adequate protection in the form of a Lien, the Revolving Facility Agent and, if any Additional Second Lien Obligations are issued, the Second Lien Security Agent are is permitted to seek a Lien (without objection from the First Lien Security Agent or any First Lien Secured Party) on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding (so long as, with respect to Notes Revolving Facility Priority Collateral, such Lien is junior to the Liens securing such First Lien Revolving Facility Priority Collateral DIP Financing and the First Lien Priority Obligations), (iii) the foregoing provisions of this Section 3.5(a4.5(b) shall not prevent the Revolving Facility Second Lien Security Agent and the Revolving Facility Second Lien Secured Parties from objecting to any provision in any First Lien Revolving Facility Priority Collateral DIP Financing relating to any provision or content of a plan of reorganization or other plan of similar effect under any Debtor Relief Laws that are inconsistent with this Agreement and (iv) the terms of such First Lien Revolving Facility Priority Collateral DIP Financing or use of cash collateral do not require any Grantor to seek any approval for any plan of reorganization or other plan of similar effect under any Debtor Relief Laws that is inconsistent with the terms of this Agreement. Each of the Revolving Facility Agent, on behalf of the Revolving Facility Secured Parties, and, if any Additional Second Lien Obligations have been issued, the The Second Lien Security Agent, on behalf of the Second Lien Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any Notes Revolving Facility Priority Collateral free and clear of its Liens (subject to attachment of Proceeds with respect to the Second Priority Lien on the Notes Revolving Facility Priority Collateral in favor of the Second Lien Security Agent (if any Additional Second Lien Obligations have been issued) and the Third Priority Lien (or, if any Additional Second Lien Obligations have not been issued, the Second Priority Lien) on the Notes Priority Collateral in favor of the Revolving Facility Agent, respectively, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Second Lien Secured Party or Revolving Facility Secured Party, as the case may be, as an unsecured creditor in any such Insolvency or Liquidation Proceeding, Proceeding if the First Second Lien Secured Parties have consented to such sale or disposition of such assets; provided that the foregoing shall not prohibit the Second Lien Security Agent, Agent and the other Second Lien Secured Parties, the Revolving Facility Agent and the other Revolving Facility Secured Parties from seeking and exercising credit bid rights pursuant to Section 363(k) of the Bankruptcy Code in respect of any such sale or disposition; provided, further that such credit bid may only be made if Discharge of First Lien Obligations (and, in the case of a credit bid by the Revolving Facility Agent or the other Revolving Facility Secured Parties, Discharge of Second Lien Obligations if any Additional Second Lien Obligations have been issued) has occurred or will occur concurrently as a result of a cash bid for such Notes Revolving Priority Collateral in addition to such credit bid.

Finance and Sale Issues – First Lien Obligations. Until the Discharge of First First-Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Directing First First-Lien Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Notes Term Loan Priority Collateral or to permit the Company or any other Grantor to obtain financing, whether from the First First-Lien Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Debtor Relief Bankruptcy Law that is secured by a Lien lien that is (i) senior or pari passu with the Liens liens on the Notes Term Loan Priority Collateral securing the First First-Lien Priority Obligations, and (ii) junior to the Liens liens on the Revolving Facility ABL Priority Collateral securing the Revolving Facility ABL Priority Obligations (each, a “First First-Lien DIP Financing”), then (x) if any Additional Second Lien Obligations have been issued, each of the Second Second-Lien Security Agent, on behalf of itself and the other Second Second-Lien Secured Parties, and (y) the Revolving Facility ABL Agent, on behalf of itself and the other Revolving Facility ABL Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting Notes Term Loan Priority Collateral or to the fact that such First First-Lien DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the Directing First First-Lien Security Agent or to the extent permitted by Section 3.5(c) and 5.4(a)) and, the Second Second-Lien Security Agent and the Revolving Facility ABL Agent will each subordinate its their Liens in the Notes Term Loan Priority Collateral to the Liens securing such First First-Lien DIP Financing (and all interest and other obligations relating thereto); provided that (A) the aggregate principal amount of the First Lien DIP Financing plus the aggregate outstanding principal amount of First Lien Obligations for borrowed money under the First Lien Documents plus the aggregate face amount of any letters of credit issued and not reimbursed under the First Lien Documents shall not exceed the First Lien Debt Cap and (B) (i) each of the Revolving Facility Second-Lien Security Agent, the other Second-Lien Secured Parties, the ABL Agent and the other Revolving Facility ABL Secured Parties and, if any Additional Second Lien Obligations have been issued, the Second Lien Security Agent and the other Second Lien Secured Parties, retain a Lien on the Collateral to secure the Revolving Facility Second-Lien Priority Obligations and the Second Lien ABL Priority Obligations, as the case may be, and, with respect to the Revolving Facility ABL Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the First First-Lien Security Agent is granted adequate protection in the form of a LienLien and/or a superpriority administrative claim, the Revolving Facility Agent and, if any Additional Second Lien Obligations are issued, the Second Second-Lien Security Agent and the ABL Agent are permitted to seek a Lien (without objection from the First First-Lien Security Agent or any First First-Lien Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority administrative claim, as applicable (so long as, with respect to Notes Term Loan Priority Collateral, such Lien is junior to the Liens securing such First First-Lien DIP Financing and the First First-Lien Priority ObligationsObligations and such superpriority administrative claim is junior to the superpriority administrative claim granted to the First-Lien Security Agent), (iii) the foregoing provisions of this Section 3.5(a) shall not prevent the Revolving Facility Agent and the Revolving Facility Secured Parties from objecting to any provision in any DIP Financing relating to any provision or content of a plan of reorganization or other plan of similar effect under any Debtor Relief Laws that are inconsistent with this Agreement and (iv) the terms of such First First-Lien DIP Financing or use of cash collateral do not require any Grantor to seek any approval for any plan Plan of reorganization or other plan of similar effect under any Debtor Relief Laws Reorganization that is inconsistent with this Agreement and (iv) the terms aggregate principal amount of this such First-Lien DIP Financing (exclusive of any Interest Rate Protection Agreement or Other Hedging Agreement, to the extent constituting principal) does not exceed the Maximum Exposure Amount. Each of the Revolving Facility Agent, on behalf of the Revolving Facility Secured Parties, and, if any Additional Second Lien Obligations have been issued, the Second The Second-Lien Security Agent, on behalf of the Second Second-Lien Secured Parties, agrees and the ABL Agent, on behalf of the ABL Secured Parties, agree that it they will not raise any objection or oppose a sale or other disposition of any Notes Term Loan Priority Collateral free and clear of its Liens (subject to attachment of Proceeds proceeds with respect to the Second Priority Lien on the Notes Term Loan Priority Collateral in favor of the Second Second-Lien Security Agent (if any Additional Second Lien Obligations have been issued) and the Third Priority Lien (or, if any Additional Second Lien Obligations have not been issued, the Second Priority Lien) on the Notes Term Loan Priority Collateral in favor of the Revolving Facility ABL Agent, respectively, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Second Second-Lien Secured Party or Revolving Facility ABL Secured Party, as the case may be, as an unsecured creditor in any such Insolvency or Liquidation Proceeding, if the First First-Lien Secured Parties have consented to such sale or disposition of such assets; provided that the foregoing shall not prohibit the Second Second-Lien Security Agent, the other Second Second-Lien Secured Parties, the Revolving Facility ABL Agent and the other Revolving Facility ABL Secured Parties from seeking shall be entitled to seek and exercising credit bid rights pursuant to Section 363(k) of the Bankruptcy Code exercise Credit Bid Rights in respect of any such sale or disposition; provided, further that such credit bid may only be made if Discharge of First Lien Obligations (and, in the case of a credit bid by the Revolving Facility Agent or the other Revolving Facility Secured Parties, Discharge of Second Lien Obligations if any Additional Second Lien Obligations have been issued) has occurred or will occur concurrently as a result of a cash bid for such Notes Priority Collateral in addition to such credit bid.

Finance and Sale Issues – First Lien Obligations. Until After the Discharge of First ABL Obligations has occurred and until the Discharge of First-Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Directing First First-Lien Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Notes ABL Priority Collateral or to permit the Company or any other Grantor to obtain a financing, whether from the First First-Lien Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Debtor Relief Law Bankruptcy Law, that is secured by a Lien lien that is (i) senior or pari passu with the Liens liens on the Notes ABL Priority Collateral securing the First First-Lien Priority Obligations, Obligations and (ii) junior to the Liens liens on the Revolving Facility Term Loan Priority Collateral securing the Revolving Facility Second-Lien Priority Obligations (each, a “First First-Lien DIP Financing”), then (x) if any Additional Second Lien Obligations have been issued, each of the Second Second-Lien Security Agent, on behalf of itself and the other Second Second-Lien Secured Parties, and (y) the Revolving Facility Agent, on behalf of itself and the other Revolving Facility Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting Notes ABL Priority Collateral or to the fact that such First Lien ABL DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the Directing First Lien Security ABL Agent or to the extent permitted by Section 3.5(c4.5(d)) and, the Second Second-Lien Security Agent and the Revolving Facility Agent will each subordinate its Liens in the Notes ABL Priority Collateral to the Liens securing such First ABL DIP Financing or First-Lien DIP Financing Financing, as the case may be, (and all interest and other obligations relating thereto); provided that (Ai) the aggregate principal amount of the First Lien DIP Financing plus the aggregate outstanding principal amount of First Lien Obligations for borrowed money under the First Lien Documents plus the aggregate face amount of any letters of credit issued and not reimbursed under the First Lien Documents shall not exceed the First Lien Debt Cap and (B) (i) each of the Revolving Facility Agent and the other Revolving Facility Secured Parties and, if any Additional Second Lien Obligations have been issued, the Second Second-Lien Security Agent and the other Second Second-Lien Secured Parties, Parties retain a Lien on the Collateral to secure the Revolving Facility Second-Lien Priority Obligations and the Second Lien Priority Obligations, as the case may be, and, with respect to the Revolving Facility Term Loan Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the First First-Lien Security Agent is granted adequate protection in the form of a LienLien and/or a superpriority administrative claim, the Revolving Facility Agent and, if any Additional Second Lien Obligations are issued, the Second Second-Lien Security Agent are is permitted to seek a Lien (without objection from the First First-Lien Security Agent or any First First-Lien Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority claim, as applicable (so long as, with respect to Notes ABL Priority Collateral, such Lien is junior to the Liens securing such First Lien ABL DIP Financing and First-Lien DIP Financing, as the First case may be, the ABL Priority Obligations and the First-Lien Priority Obligations), (iii) and such superpriority administrative claim is junior to the foregoing provisions of this Section 3.5(a) shall not prevent superpriority administrative claim granted to the Revolving Facility ABL Agent and the Revolving Facility Secured Parties from objecting to any provision in any DIP Financing relating to any provision or content of a plan of reorganization or other plan of similar effect under any Debtor Relief Laws that are inconsistent with this Agreement First-Lien Security Agent), and (iviii) the terms of such First First-Lien DIP Financing or use of cash collateral do not require any Grantor to seek any approval for any plan Plan of reorganization or other plan of similar effect under any Debtor Relief Laws Reorganization that is inconsistent with the terms of this Agreement. Each of the Revolving Facility Agent, on behalf of the Revolving Facility Secured Parties, and, if any Additional Second Lien Obligations have been issued, the Second The Second-Lien Security Agent, on behalf of the Second Second-Lien Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any Notes ABL Priority Collateral free and clear of its Liens (subject to attachment of Proceeds proceeds with respect to the Second Third Priority Lien on the Notes ABL Priority Collateral in favor of the Second Second-Lien Security Agent (if any Additional Second Lien Obligations have been issued) and the Third Priority Lien (or, if any Additional Second Lien Obligations have not been issued, the Second Priority Lien) on the Notes Priority Collateral in favor of the Revolving Facility Agent, respectively, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Second Second-Lien Secured Party or Revolving Facility Secured Party, as the case may be, as an unsecured creditor in any such Insolvency or Liquidation Proceeding, Proceeding if the First Second-Lien Secured Parties have consented to such sale or disposition of such assets; provided that the foregoing shall not prohibit the Second Second-Lien Security Agent, the other Second Lien Secured Parties, the Revolving Facility Agent and the other Revolving Facility Second-Lien Secured Parties from seeking shall be entitled to seek and exercising credit bid rights pursuant to Section 363(k) of the Bankruptcy Code exercise Credit Bid Rights in respect of any such sale or disposition; provided, further that such credit bid may only be made if Discharge of First Lien Obligations (and, in the case of a credit bid by the Revolving Facility Agent or the other Revolving Facility Secured Parties, Discharge of Second Lien Obligations if any Additional Second Lien Obligations have been issued) has occurred or will occur concurrently as a result of a cash bid for such Notes Priority Collateral in addition to such credit bid.