Financing and Sale Issues. (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent shall desire to permit the use of cash collateral or to permit the Company or any other Grantor to obtain financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar Bankruptcy Law (“DIP Financing”), then the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceeding.
Appears in 2 contracts
Samples: Intercreditor Agreement (Century Aluminum Co), Intercreditor Agreement (Century Aluminum Co)
Financing and Sale Issues. (a) If Until the Discharge of Senior Obligations has occurred, if the Company or any other Centertainment Group Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Company’s or any other Grantor to obtain Centertainment Group Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except solely to the Parity Lien Collateral Agentextent permitted by Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents Obligations are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentation, (v) Designated Senior Representative. Until the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof)Senior Obligations has occurred, (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as applicable) raise no objection to and will not otherwise contest (a) any motion for relief from the Trusteeautomatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and on Senior Collateral or (d) any sale or other disposition of any or all of the Noteholders are not permitted to seek adequate protection Senior Collateral for which the Designated Senior Representative has consented that provides, to the extent permitted in Section 6.03such sale or other disposition is to be free and clear of Liens, (y) such DIP Financing directly or indirectly provides for, or has that the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than Liens securing the Senior Lender Claims prior Obligations and the Junior Obligations will attach to the Discharge proceeds of the Parity Lien Debtsale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement; without limiting the foregoing, or (z) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Section 363(e) or Section 363(f) of the Trustee, Bankruptcy Code or any similar provision of any other agentBankruptcy Law. In addition, trustee the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all disposition in accordance with Section 363(k) of the Common CollateralBankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), including proceeds arising after so long as any such credit bid provides for the commencement payment in full in cash of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 2 contracts
Samples: Intercreditor Agreement (Amc Entertainment Holdings, Inc.), Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Priority Obligations has occurred, if Holdings, the Notes Issuers, the Borrowers or any other Grantor Debtor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then (x) each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility and (y) each Senior Subordinated Priority Representative, for itself and on behalf of each Senior Subordinated Priority Party under its Senior Subordinated Priority Debt Facility, agrees that if any Senior Priority Representative or Senior Priority Secured Party shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to Holdings’, the Company Borrowers’ or any other Grantor to obtain Grantor’s or Debtor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), it will raise no objection to and will not otherwise contest such sale, use or lease of cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso to clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Priority Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations or Senior Subordinated Priority Debt Obligations (as applicable) are so subordinated to Liens securing Senior Priority Obligations under this Agreement, (y) any “carve-out” for professional and United States Trustee fees agreed to by the Senior Priority Representatives and (z) all adequate protection liens granted to the Senior Priority Secured Parties; provided that none of the foregoing provisions shall be binding on the Second Priority Secured Parties or Senior Subordinated Priority Parties to the extent that the sum of the then outstanding principal amount of any Senior Priority Obligations and Senior Subordinated Priority Debt Obligations and any DIP Financing exceeds the Parity Lien Collateral AgentDIP Cap Amount (after giving effect to the concurrent Refinancing of any Senior Priority Obligations). Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt Facility and the Noteholders, agrees that (i) if the each Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral AgentSubordinated Priority Representative, for itself and on behalf of each Senior Subordinated Priority Party under its Senior Subordinated Priority Debt Facility, further agrees that (A) it will raise no objection to (and will not otherwise contest) any motion for relief from the Trustee, automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Priority Obligations made by any Senior Priority Representative or any other agentSenior Priority Secured Party, trustee or representative for Parity Lien Debt (B) it will raise no objection to (and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Priority Obligations at any sale in foreclosure of Senior Priority Collateral or otherwise under Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, (C) it will raise no objection to (and will not otherwise contest) any other request adequate protection except for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral and (D) it will raise no objection to (and will not otherwise contest or oppose) any order relating to a Disposition of assets of any Debtor for which any Senior Priority Representative has consented or not objected that provides, to the extent permitted such Disposition is to be free and clear of Liens, that the Liens securing the Senior Priority Obligations and the Second Priority Debt Obligations and the Senior Subordinated Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Collateral securing the Senior Priority Obligations rank to the Liens on the Collateral securing the Second Priority Debt Obligations or Senior Subordinated Priority Debt Obligations (as applicable) pursuant to this Agreement; provided that such motion does not impair, subject to the priorities set forth in this Agreement, the rights of the Second Priority Secured Parties or the Senior Subordinated Priority Parties under Section 6.03 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, so long as the right of the Second Priority Secured Parties or Senior Subordinated Priority Parties (as applicable) to offset their claim against the purchase price is only after the Senior Priority Obligations have been paid in full in cash; provided, further, that (i) any Second Priority Secured Party and any Senior Subordinated Priority Party may raise any objection to the bidding or related procedures proposed to be utilized in connection with such sale of assets that could be raised by an unsecured creditor of the Debtors; and (ii) if nothing in this Section 6.01 shall prohibit any Second Priority Secured Party or Senior Subordinated Priority Party from (1) exercising its rights to vote in favor of or against a plan of reorganization or similar dispositive restructuring plan in a manner consistent with, and not in violation of, this Agreement (including Section 6.11), (2) proposing a DIP Financing to any Debtor that is junior to the Senior Lenders consent Priority Obligations, or (c) objecting to any provision in any proposed DIP Financing that provides for priming relating, describing or requiring the material provisions or content of a plan of reorganization or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agentsimilar dispositive restructuring plan. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt Facility and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the each Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentSubordinated Priority Representative, for itself and on behalf of the Trusteeeach Senior Subordinated Priority Party under its Senior Subordinated Priority Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received three (3) Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to shall be adequate notice. After the Discharge of Senior Priority Obligations each Second Priority Representative and Second Priority Secured Party shall have all of the Parity Lien Debt, or rights vis-à-vis each Senior Subordinated Priority Representative (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Senior Subordinated Priority Party under its Senior Subordinated Priority Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative Facility) provided to the Senior Lender Liens as existed prior to Priority Representative and Senior Priority Secured Party under this Section 6.01 mutatis mutandis (without any consent, sanction, authority or further confirmation from any Second Priority Secured Party, Senior Subordinated Priority Party, Intra-Group Lender, Debtor or the commencement of the Insolvency or Liquidation ProceedingHoneywell Indemnitee).
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (Garrett Motion Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of First Priority Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any First Priority Representative shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral and/or to consent (or not object) to permit the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral and/or such DIP Financing and, except to the Parity extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any First Priority Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing First Priority Obligations under this Agreement, (y) any “carve-out” for professional and United States Trustee fees agreed to by the First Priority Representatives and (z) all adequate protection liens granted to the First Priority Secured Parties, (B) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Priority Obligations made by any First Priority Representative or any other First Priority Secured Party, (C) it will raise no objection to (and will not otherwise contest) any lawful exercise by any First Priority Secured Party of the right to credit bid First Priority Obligations at any sale of or sale in foreclosure of Collateral (including pursuant and according to Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law), (D) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any First Priority Secured Party relating to the lawful enforcement of any Lien on First Priority Collateral, (E) it will raise no objection to (and will not otherwise contest) any election made by any First Priority Representative or any other First Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral Agentand (F) it will raise no objection to (and will not otherwise contest or oppose) any Disposition (including pursuant and according to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for which any First Priority Representative has consented that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the First Priority Obligations and the Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the First Priority Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition pursuant to and in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the First Priority Obligations. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if notice received three Business Days prior to the Senior Lenders consent to entry of an order approving such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use usage of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to approving such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 2 contracts
Samples: Security Agreement (Ocwen Financial Corp), Intercreditor Agreement (Ocwen Financial Corp)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any “carve-out” for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to and will not otherwise contest any motion for relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceedings or from any injunction against foreclosure or enforcement in respect of Senior Obligations or the Senior Priority Collateral made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to and will not otherwise contest any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any foreclosure or other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to and will not otherwise contest any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to and will not otherwise contest or oppose any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for or to which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral notice received three Business Days prior to the occurrence entry of a default under the an order approving any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims described in this Section 6.01 shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 2 contracts
Samples: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Financing and Sale Issues. (a) If the Company or any other Grantor Senior Borrower shall be subject to any Insolvency or Liquidation Bankruptcy Proceeding and at any time prior to the First-Lien Discharge of Senior Obligations the Senior Agent or the other Senior Financing Parties shall desire to permit the sale, use or lease of cash collateral or to permit the Company or any other Grantor Senior Borrower to obtain financing under Section 363 or Section 364 of Title 11 the Bankruptcy Code or to provide such financing ("DIP Financing"), then, so long as (A) the Subordinated Financing Parties retain the right to request a replacement Lien on the assets covered by the Common Collateral with the same priority as existed prior to the commencement of the United States Code Bankruptcy Proceeding (subject to the liens of any DIP Financing Lender), (B) the material terms and conditions of such DIP Financing (other than with respect to principal amount thereof) are commercially reasonable, and (C) the Lien granted to the Person providing such financing ranks prior to or any similar Bankruptcy Law (“DIP Financing”)pari passu with the pre-petition Lien of the Senior Financing Parties, then the Parity Lien Collateral Subordinated Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt itself and the Noteholdersother Subordinated Financing Parties, and each Subordinated Lender by becoming a Subordinated Lender, agrees that (i) if the Senior Lenders consent to such use of cash collateralit will raise no objection to, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, nor support any other agentPerson objecting to, trustee such sale, use, or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use lease of cash collateral or DIP Financing and they will not request any form of adequate protection or any other relief in connection therewith (except as agreed by the Senior Agent or to the extent expressly permitted in by Section 6.03 and (ii6.3) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000and, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents Obligations are subordinated subordinate to or pari passu with such DIP Financing, they it will subordinate their (and will be deemed hereunder to have subordinated) the Liens in securing the Common Collateral Subordinated Obligations (i) to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on with, if applicable, the same basis terms and conditions as the other Liens securing the Parity Lien Claims Senior Obligations are subordinated to Liens securing Senior Lender Claims under this Agreement unless thereto (u) and such subordination will not alter in any manner the terms and priorities of such this Agreement), (ii) to any adequate protection provided to the Senior Financing Parties and (iii) to any "carve-out" for reasonable professional and United States Trustee fees agreed to by the Senior Financing Parties; provided that the foregoing shall not prohibit the Subordinated Financing Parties from objecting solely to any provisions in any DIP Financing provide for the sale relating to, describing or other disposition of requiring any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale provision or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation content of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such provisions solely requiring that the DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined be paid in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted full in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceeding.Exh. F-16
Appears in 1 contract
Financing and Sale Issues. (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent shall desire to permit the use of cash collateral or to permit the Company or any other Grantor to obtain financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar Bankruptcy Law (“DIP Financing”), then the Parity Lien Trustee and the Noteholder Collateral Agent, for itself and Agent on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt themselves and the Noteholders, agrees Noteholders agree that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Trustee and the Noteholder Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt themselves and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000175 million, the Parity Lien Trustee and the Noteholder Collateral Agent, for itself and Agent on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt themselves and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Noteholder Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingAgreement.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company or Thermo Claim is Paid in Full, if any other Grantor shall be Obligor becomes subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent shall desire Thermo desires to permit the use of cash collateral (as defined in Section 363(a) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, “Cash Collateral”) constituting Thermo Senior Collateral or proceeds thereof or to permit the Company such Obligor or any other Grantor Obligors to obtain financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision in any Bankruptcy Law (“DIP Financing”), whether from Thermo, any AR Lender or any other Person, then the Parity Lien Collateral AgentPost Road, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the NoteholdersPost Road Lenders, agrees that each of the Post Road Lenders (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall will be deemed to have consented to and will not object to such use of cash collateral and they Cash Collateral constituting Thermo Senior Collateral or DIP Financing, (ii) will not request or accept adequate protection or any other relief in connection with the use of such Cash Collateral constituting Thermo Senior Collateral or such DIP Financing except to the extent permitted as set forth in Section 6.03 6.3, and (iiiii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing on the Senior Lender Claims under the Thermo Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in on the Common Thermo Senior Collateral to the Liens on the Thermo Senior Collateral securing such DIP Financing Financing; provided that (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (uA)(x) the terms sum (without duplication) of such DIP Financing provide for the sale or other disposition of any (i) aggregate principal amount of the Common Collateral prior to DIP Financing, plus the occurrence of a default under the DIP Financing documentation, (vii) the terms of such DIP Financing provide for the sale or other disposition of a substantial part aggregate principal amount of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof)Thermo Claim, (w) the proposed effective interest rate of any such DIP Financing is does not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, exceed (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment Thermo First Lien Cap Amount; (whether in cash or otherwiseB) of any obligation other than the Senior Lender Claims prior Post Road retains its Liens with respect to the Discharge Thermo Senior Collateral that existed as of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf date of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all commencement of the Common Collateral, applicable Insolvency Proceeding (including proceeds arising after the commencement of an such Insolvency Proceeding); (C) any such DIP Financing is otherwise subject to the terms of this Agreement; (D) Post Road shall retain the right to object to any ancillary agreements or Liquidation Proceedingarrangements regarding the use of Cash Collateral or the DIP Financing that are materially prejudicial to its interests; (E) Post Road shall have the right to object to any DIP Financing that compels any Obligor to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in the DIP Financing agreement; and (F) the proposed Cash Collateral order or DIP Financing agreement does not expressly require the sale of all or substantially all of the Collateral prior to a default under such Cash Collateral order or such DIP Financing agreement; provided, however, that if Thermo or any other AR Lender does not offer to provide DIP Financing to the extent permitted under this Section 6.1 on or before the date of the hearing to approve DIP Financing, then one or more of the Post Road Lenders may seek to provide such DIP Financing secured by Liens on the Post Road Senior Collateral senior to or pari passu with the same Liens on the Thermo Senior Collateral, provided that any such DIP Financing provided by such Post Road Lender may not “roll-up” or otherwise include or refinance any pre-petition portion of the Post Road Claim. If, in connection with any use of Cash Collateral constituting Thermo Senior Collateral or DIP Financing, any Liens on the Thermo Senior Collateral securing the Thermo Claim are subject to a surcharge or are subordinated to an administrative priority relative claim, a professional fee “carve out” or fees owed to the United States Trustee, then the Liens on the Thermo Senior Lender Liens as existed prior Collateral securing the Post Road Claim shall also be subordinated to such interest or claim and shall remain subordinated to the commencement of Liens on the Insolvency or Liquidation ProceedingThermo Senior Collateral consistent with this Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement (Digerati Technologies, Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative or any Senior Priority Secured Party shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any “carve-out” or administrative charge for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure or enforcement of Senior Priority Collateral pursuant to Section 363(k) of the Bankruptcy Code or other applicable law, (D) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to (and will not otherwise contest) any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to (and will not otherwise contest or oppose) any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral notice received three Business Days prior to the occurrence entry of a default under the DIP Financing documentation, (v) the terms an order approving such usage of such DIP Financing provide for the sale cash or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims collateral or approving such financing shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 1 contract
Samples: Junior Priority Intercreditor Agreement (Mens Wearhouse Inc)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrowers’ or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the any Senior Lender Claims under the Senior Collateral Documents Obligations are subordinated to or pari passu with have the same priority as the Liens securing such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Second Priority Debt Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, so long as the sum of (ua) the terms maximum aggregate principal amount of Indebtedness that may be outstanding from time to time under such DIP Financing provide for (including any such portion thereof that constitutes rollover of loans under the sale or other disposition Senior Priority Debt Documents) plus, without duplication, (b) the aggregate principal amount of any loans and the aggregate face amount of letters of credit issued but not reimbursed under the Senior Priority Debt Documents does not exceed 115% of the Common Collateral prior to greater of (x) $1,040,000,000 and (y) the occurrence aggregate principal amount of a default loans under the Senior Priority Debt Documents outstanding at the time the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceeding.entered into,
Appears in 1 contract
Financing and Sale Issues. (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent shall desire to permit the use of cash collateral or to permit the Company or any other Grantor to obtain financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar Bankruptcy Law (“DIP Financing”), then the Parity Lien Collateral AgentEach Representative, for itself and on behalf of the Trustee, any each other agent, trustee or representative for Parity Lien Secured Party under its Debt and the NoteholdersFacility, agrees that that, in the event of any Insolvency or Liquidation Proceeding, such Secured Parties (i) if will not oppose or object to the Senior Lenders consent use of any Shared Collateral constituting cash collateral under Section 363 of the Bankruptcy Code or any comparable provision of any other Bankruptcy Law, unless the Controlling Secured Parties or the Controlling Representative shall oppose or object to such use of cash collateral (in which case, no other Representative or other Secured Party shall seek any relief in connection therewith that is inconsistent with the relief being sought by the Controlling Secured Parties), (ii) will not oppose or object to any post-petition financing, whether provided by any Controlling Secured Party or any other Person, under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law (a “DIP Financing”), or the Liens securing any DIP Financing (“DIP Financing Liens”), unless the Controlling Secured Parties, or a representative authorized by the Controlling Secured Parties, shall then oppose or object to such DIP Financing and DIP Financing Liens (provided that the foregoing shall not prevent such other Secured Parties or their Affiliates from proposing any other DIP Financing to any Grantors or to a court of competent jurisdiction), and shall subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing Liens (and all obligations relating thereto) on the same basis as the Second Priority Liens are so subordinated to the First Priority Liens under this Agreement, (y) any adequate protection Liens provided to the First Priority Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the Controlling Representative, and (iii) except to the extent permitted by Section 7.02, in connection with the use of cash collateral as described in clause (i) above or a DIP Financing as described in clause (ii), will not request adequate protection or any other relief in connection with such use of cash collateral, DIP Financing or DIP Financing Liens; provided that: (a) such DIP Financing shall not result in the Parity voiding of the Lien of any Second Priority Representative on the Shared Collateral Agentsecuring the Second Priority Debt Obligations, which Lien shall remain subject to the priority requirements described herein vis-à-vis the Liens securing the First Priority Debt Obligations (it being understood that any reduction in the value of any Second Priority Lien by virtue of the mere existence of the DIP Financing and the DIP Financing Liens shall not be deemed to void the Lien of any Second Priority Representative for purposes of this clause (a)); (b) all DIP Financing Liens shall be senior to or on parity with the Liens of each First Priority Representative on the Shared Collateral securing the First Priority Debt Obligations and by operation of clause (ii) above, senior to the Liens of each Second Priority Representative on the Shared Collateral securing the Second Priority Debt Obligations; and (c) in the event that any First Priority Representative receives a Lien on post-petition assets of any Grantor as adequate protection for the First Priority Debt Obligations, each Second Priority Representative has the right to seek a Lien on such post-petition assets of the Grantors as adequate protection for the Second Lien Debt Obligations, which adequate protection Lien shall be subordinated to Liens securing and providing adequate protection for the First Priority Debt Obligations to the same extent set forth in this Agreement. In addition, each Representative, for itself and on behalf of each other Secured Party under its Debt Facility, agrees that, in the Trusteeevent of any Insolvency or Liquidation Proceeding, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they Secured Parties will not request adequate protection except oppose or object to the extent permitted in Section 6.03 and (ii1) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000any sale, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale transfer or other disposition of any Shared Collateral free and clear of the Common Collateral prior Liens applicable to the occurrence relevant Series of Secured Debt Obligations or other claims under Section 363 of the Bankruptcy Code or any comparable provision of any other Bankruptcy Law (including, for the avoidance of doubt, the approval of bidding procedures in connection therewith or any other related or ancillary matters) (a default “363 Sale”), if the Controlling Secured Parties or the Controlling Representative shall consent, or not oppose or object, to such sale or other disposition; provided that pursuant to a court order the Liens of the Second Priority Secured Parties attach to the net proceeds of such sale or disposition with the same priority and validity as the Liens held by the Second Priority Secured Parties in such Shared Collateral; provided further that the Second Priority Secured Parties shall retain the right to credit bid their claims (and their rights under Section 363(k) of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, shall not be impaired), to the extent the credit bid is authorized or accepted by the applicable bankruptcy court, in connection with any such sale in a transaction that provides for the payment in full in cash on the closing date of such sale of the First Priority Debt Obligations, or (2) the right of any First Priority Secured Party to credit bid First Priority Debt Obligations at any sale in foreclosure of Shared Collateral under Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. Notwithstanding the foregoing, the applicable provisions of this Section 7.01 shall only be binding on the Second Priority Secured Parties with respect to any DIP Financing documentation, (v) to the terms extent the principal amount of such DIP Financing provide for (together with the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate principal amount of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (xremaining pre-petition First Priority Debt Obligations) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of exceed the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingDIP Cap.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Discharge of Senior Obligations has occurred, if the Company or any other Centertainment Group Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Company’s or any other Grantor to obtain Centertainment Group Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents Obligations are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentation, (v) Designated Senior Representative. Until the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof)Senior Obligations has occurred, (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as applicable) raise no objection to and will not otherwise contest (a) any motion for relief from the Trusteeautomatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and on Senior Collateral or (d) any sale or other disposition of any or all of the Noteholders are not permitted to seek adequate protection Senior Collateral for which the Designated Senior Representative has consented that provides, to the extent permitted in Section 6.03such sale or other disposition is to be free and clear of Liens, (y) such DIP Financing directly or indirectly provides for, or has that the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than Liens securing the Senior Lender Claims prior Obligations and the Junior Obligations will attach to the Discharge proceeds of the Parity Lien Debtsale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement; without limiting the foregoing, or (z) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Section 363(e) or Section 363(f) of the Trustee, Bankruptcy Code or any similar provision of any other agentBankruptcy Law. In addition, trustee the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all disposition in accordance with Section 363(k) of the Common CollateralBankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), including proceeds arising after so long as any such credit bid provides for the commencement payment in full in cash of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 1 contract
Samples: Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrowers’ or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, so long as the sum of (a) the maximum aggregate principal amount of Indebtedness that may be outstanding from time to time under such DIP Financing (including any such portion thereof that constitutes rollover of loans under the Senior Priority Debt Documents) plus, without duplication, (b) the aggregate principal amount of loans and the aggregate face amount of letters of credit issued but not reimbursed under the Senior Priority Debt Documents does not exceed 115% of the greater of (x) $600,000,000 and (y) the aggregate principal amount of loans under the Senior Priority Debt Documents outstanding at the time the DIP Financing is entered into, (y) any “carve-out” for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to and will not otherwise contest any motion for relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceedings or from any injunction against foreclosure or enforcement in respect of Senior Obligations or the Senior Priority Collateral made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to and will not otherwise contest any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any foreclosure or other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to and will not otherwise contest any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to and will not otherwise contest or oppose any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for or to which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided, that the Second Priority Secured Parties may assert any objection to the proposed bidding and related sale procedures to be utilized in connection with such Disposition that may be raised by an unsecured creditor of any Grantor; provided, further, that the Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral notice received three Business Days prior to the occurrence entry of a default under the an order approving any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims described in this Section 6.01 shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 1 contract
Samples: Intercreditor Agreement (PAE Inc)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, so long as the sum of (a) the maximum aggregate principal amount of Indebtedness that may be outstanding from time to time under such DIP Financing (including any such portion thereof that constitutes rollover of loans and/or letters of credit under the Senior Priority Debt Documents) plus, without duplication, (b) the aggregate principal amount of loans, the aggregate face amount of undrawn letters of credit issued and outstanding under the Senior Priority Debt Documents and the aggregate amount of unreimbursed drawings under letters of credit issued under the Senior Priority Debt Documents does not exceed 115% of the greater of (i) $965,000,000, and (ii) the aggregate principal amount of loans, the aggregate face amount of undrawn letters of credit issued and outstanding under the Senior Priority Debt Documents and the aggregate amount of unreimbursed drawings under letters of credit issued under the Senior Priority Debt Documents outstanding immediately prior to the time the DIP Financing is entered into (for the avoidance of doubt, before giving effect to any rollover of any loans and/or letters of credit under the Senior Priority Debt Documents into the DIP Financing), (y) any “carve-out” for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to and will not otherwise contest any motion for relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceedings or from any injunction against foreclosure or enforcement in respect of Senior Obligations or the Senior Priority Collateral made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to and will not otherwise contest any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any foreclosure or other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to and will not otherwise contest any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to and will not otherwise contest or oppose any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for or to which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full of the Senior Obligations. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral notice received three Business Days prior to the occurrence entry of a default under the an order approving any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims described in this Section 6.01 shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 1 contract
Samples: Intercreditor Agreement (ZoomInfo Technologies Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if any Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Junior Priority Representative, for itself and the First-Lien Agent on behalf of each Junior Priority Secured Party under its Junior Priority Debt Facility, agrees that (A) if any Senior Priority Representative shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit the Company consent (or not object) to any Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision(s) of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) the Liens securing such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Junior Priority Debt Obligations are so subordinated to the Liens securing the Senior Obligations under this Agreement, (y) any reasonable “carve-out” for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to and will not otherwise contest any motion for relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceedings or from any injunction against foreclosure or enforcement in respect of Senior Obligations or the Senior Priority Collateral made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to and will not otherwise contest any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any foreclosure or other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to and will not otherwise contest any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to and will not otherwise contest or oppose any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for or to which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Priority Debt Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Priority Debt Obligations pursuant to this Agreement; provided that the Junior Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations. Each Junior Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Priority Secured Party under its Junior Priority Debt and the NoteholdersFacility, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral notice received three Business Days prior to the occurrence entry of a default under the an order approving any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims described in this Section 6.01 shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 1 contract
Samples: Patent Security Agreement (Dole PLC)
Financing and Sale Issues. (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-any First Lien Agent shall desire to permit the use of cash collateral or to permit the Company or any other Grantor to obtain financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision(s) in any other Bankruptcy Law (“DIP Financing”), then the Parity Lien Collateral each Second Priority Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt itself and the Noteholderseach applicable Second Priority Secured Party, agrees that (i) if the Senior Lenders consent to such use of cash collateralit will raise no objection to, the Parity Lien Collateral Agentand will not support any objection to, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to will not otherwise contest such use of cash collateral or DIP Financing and they will not request adequate protection or any other relief in connection therewith (except to the extent permitted in by Section 6.03 and (ii6.3) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000and, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Lender Documents are subordinated to or pari passu with the Liens securing such DIP Financing, they will subordinate their its Liens in the Common Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations relating thereto), (y) and any adequate protection Liens provided to such First Lien Agent or the Senior Lender Claims Lenders or (z) any “carve-out” from the Common Collateral or court ordered priority for fees agreed to by such First Lien Agent or the Senior Lenders, in each case on the same basis as the other Liens securing the Parity Lien Second Priority Claims are so subordinated to the Liens securing the Senior Lender Claims under this Agreement unless Agreement. Each Second Priority Agent, on behalf of itself and each applicable Second Priority Secured Party, further agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest (ua) any motion for relief from the terms automatic stay or from any injunction against foreclosure or enforcement in respect of such DIP Financing provide for the sale Senior Lender Claims made by any First Lien Agent or other disposition any holder of Senior Lender Claims, (b) any lawful exercise by any holder of Senior Lender Claims of the Common right to credit bid Senior Lender Claims at any sale of Senior Lender Collateral prior (including pursuant to the occurrence of a default under the DIP Financing documentation, (vSection 363(k) the terms of such DIP Financing provide for the sale or other disposition of a substantial part Section 1129(b)(2)(A)(ii) of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) Bankruptcy Code or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereofany similar Bankruptcy Law), (wc) any other request for judicial relief made in any court by any holder of Senior Lender Claims relating to the proposed effective interest rate lawful enforcement of any such DIP Financing is not commercially reasonable under the circumstances Lien on Senior Lender Collateral, or (as reasonably determined in the good faith d) any order relating to a sale of the Board of Directors of the Grantor)Common Collateral for which any First Lien Agent has consented that provides, (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03the sale is to be free and clear of Liens, (y) such DIP Financing directly or indirectly provides for, or has that the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than Liens securing the Senior Lender Claims prior and the Second Priority Claims will attach to the Discharge proceeds of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and sale on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same basis of priority relative to as the Liens securing the Senior Lender Liens as existed prior Collateral do to the commencement Liens securing the Second Priority Collateral in accordance with this Agreement, provided, however, that the Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Common Collateral in any such sale or disposition in accordance with Section 363(k) or Section 1129(b)(2)(A)(ii) of the Insolvency Bankruptcy Code or Liquidation Proceedingany similar Bankruptcy Law, so long as any such credit bid provides for the payment in full in cash of the Senior Lender Claims; and provided further, however, that the Second Priority Secured Parties may raise any objection to the bidding procedures proposed to be utilized in connection with such sale or disposition that may be raised by an unsecured creditor of the Company or any other Grantor.
Appears in 1 contract
Samples: Intercreditor Agreement (SeaWorld Entertainment, Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative, any other Senior Representative or any Senior Secured Party shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in Section 3.01(a)(ii) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to shall be adequate notice. Until the Discharge of the Parity Lien DebtSenior Obligations has occurred, or (z) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as applicable) raise no objection to and will not otherwise contest (a) any motion for relief from the Trusteeautomatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and the Noteholders, does not retain Liens on Senior Collateral or (d) any order relating to a sale or other disposition of any or all of the Common CollateralSenior Collateral for which the Designated Senior Representative has consented that provides, including to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Obligations will attach to the proceeds arising after of the commencement sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement; provided that the Junior Secured Parties may assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or disposition that could be asserted by an unsecured creditor in any Insolvency or Liquidation Proceeding; without limiting the foregoing, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Section 363(e) or Section 363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the same priority relative to Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 1 contract
Samples: Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. (a) If the Company any Borrower or any other Grantor Guarantor shall be subject to any Insolvency or Liquidation Proceeding and at any time prior to the First-Discharge of First Lien Obligations the First Lien Agent or the First Lien Lenders shall desire to permit (or not object to) the sale, use or lease of cash collateral or to permit the Company (or not object to) any other Grantor Borrower to obtain financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar Bankruptcy Law to provide such financing (“DIP Financing”), then, so long as the maximum amount of Indebtedness that may be incurred in connection with such DIP Financing shall not exceed an amount equal to the Maximum First Lien Principal Debt Amount, then the Parity Second Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt itself and the NoteholdersSecond Lien Lenders, and each Second Lien Lender by becoming a Second Lien Lender, agrees that (i) if the Senior Lenders consent to such use of cash collateralit will raise no objection to, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, nor support any other agentPerson objecting to, trustee such sale, use, or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use lease of cash collateral or DIP Financing and they will not request any form of Intercreditor Agreement (Second Lien) adequate protection or any other relief in connection therewith (except as agreed by the First Lien Agent or to the extent expressly permitted in by Section 6.03 and (ii6.3) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000and, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents First Lien Obligations are subordinated subordinate to or pari passu with such DIP Financing, they it (x) will subordinate their (and will be deemed hereunder to have subordinated) the Liens in securing the Common Collateral Second Lien Obligations (x) to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on with, if applicable, the same basis terms and conditions as the other Liens securing the Parity First Lien Claims Obligations are subordinated to Liens securing Senior Lender Claims under this Agreement unless thereto (u) and such subordination will not alter in any manner the terms of this Agreement), (y) to any adequate protection provided to the First Lien Agent and the First Lien Lenders and (z) to any “carve-out” for professionals and United States Trustee fees agreed to by the First Lien Agent or the First Lien Lenders, and (ii) agrees that notice received four (4) calendar days prior to the entry of an order approving such DIP Financing provide for usage of cash collateral or approving such financing shall be adequate notice. The Second Lien Agent, on behalf of itself and the Second Lien Lenders, agrees that it will raise no objection to or oppose a sale or other disposition of any Common Collateral free and clear of its Liens or other claims under Section 363 of the Common Collateral prior Bankruptcy Code (or otherwise) if the First Lien Required Lenders have consented to (or supported) such sale or disposition of such assets so long as the respective interests of the Second Lien Lenders attach to the occurrence of a default under the DIP Financing documentationproceeds thereof, (v) subject to the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Hanesbrands Inc.)
Financing and Sale Issues. (a) If Until the Company or Discharge of Senior Lien Obligations has occurred, if any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Senior Lien Agent Representative or any other Senior Lien Secured Party shall desire to permit consent (or not object) to the sale, use or lease of cash collateral or to permit other Collateral under Section 363 of the Company Bankruptcy Code or any other Grantor provision of any other Bankruptcy Law, or to obtain consent (or not object) to any Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar other provision of any other Bankruptcy Law (“DIP Financing”), then the Parity Junior Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, Lender agrees that (i) if it will raise no objection to and will not otherwise contest directly or indirectly any such sale, use or lease of such cash or other Collateral or DIP Financing (or support, directly or indirectly, any such objection or contest), including any proposed orders for such collateral use and/or DIP Financing which are acceptable to the Senior Lenders consent Lien Representative, unless the Senior Lien Representative or any other Senior Lien Secured Party shall oppose or object to such sale, use or lease of cash collateral, or other Collateral and/or such DIP Financing (in which case the Parity Junior Lien Collateral Agent, for itself and on behalf Lender shall not seek any relief in connection with any of the Trusteeforegoing that is inconsistent with the relief being sought by the Senior Lien Secured Parties); (ii) except to the extent permitted by Section 6.03, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they it will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee relief in connection therewith or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to otherwise in such DIP Financing, and Insolvency or Liquidation Proceeding; (iii) to the extent the Liens securing the any Senior Lender Claims under the Senior Collateral Documents Lien Obligations are subordinated or pari passu with such DIP Financing or the Senior Lien Obligations are “rolled-up” (or are deemed to have been “rolled up”) into such DIP Financing, they it will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Junior Lien Claims Obligations are so subordinated to Liens securing Senior Lender Claims Lien Obligations under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03Agreement, (y) such DIP Financing any adequate protection Liens granted to the Senior Lien Secured Parties, and (z) to any “carve-out” for professional fees and costs, United States Trustee fees and costs and other customary fees and costs agreed to by the Senior Lien Representative; (iv) it will raise no objection to and will not otherwise contest directly or indirectly provides for, any motion for relief from the automatic stay or has from any injunction against foreclosure or enforcement in respect of Senior Lien Obligations made by the effect of providing for, Senior Lien Representative or any other Senior Lien Secured Party; and (v) it will raise no objection to and will not otherwise contest directly or indirectly any other request for judicial relief made in any court by any Senior Lien Secured Party relating to the payment (whether in cash or otherwise) lawful enforcement of any obligation other than Lien on Senior Lien Collateral; provided that the Senior Junior Lien Lender Claims shall not propose any post-petition financing. The Junior Lien Lender agrees that notice received two (2) calendar days prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement entry of an Insolvency order approving such usage of cash or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency other collateral or Liquidation Proceedingapproving such financing shall be adequate notice.
Appears in 1 contract
Samples: Intercreditor Agreement (Navios Maritime Holdings Inc.)
Financing and Sale Issues. (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent shall desire to permit the use of cash collateral or to permit the Company or any other Grantor to obtain financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar Bankruptcy Law (“DIP Financing”), then the Parity Lien Trustee and the Noteholder Collateral Agent, for itself and Agent on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt themselves and the Noteholders, agrees Noteholders agree that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Trustee and the Noteholder Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt themselves and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 6.3 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000175 million, the Parity Lien Trustee and the Noteholder Collateral Agent, for itself and Agent on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt themselves and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Noteholder Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingAgreement.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative or any other Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral and/or to consent (or not object) to permit the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision(s) of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with the Liens securing such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to the Liens securing the Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agentshall be adequate notice. Each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that, until the TrusteeDischarge of Senior Obligations has occurred, it will (as applicable) raise no objection to and will not otherwise contest, (a) any motion (including under Section 362 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by the Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law) with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and the Noteholders, does not retain Liens on Senior Collateral or (d) any order relating to a sale or other disposition of any or all of the Common CollateralSenior Collateral for which the Designated Senior Representative has consented that provides, including to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Obligations will attach to the proceeds arising after of the commencement of an Insolvency or Liquidation Proceeding, with sale on the same basis of priority relative as the Liens on the Shared Collateral securing the Senior Obligations rank to the Senior Lender Liens as existed prior on the Shared Collateral securing the Junior Obligations pursuant to this Agreement, without limiting the commencement foregoing, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Sections 363(e) or Section 363(f) of the Insolvency Bankruptcy Code or Liquidation Proceedingany similar provision of any other Bankruptcy Law. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor or any of their Subsidiaries shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s or applicable Subsidiary’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest (or support any person in objecting or otherwise contesting) such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties and (z) any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two (2) Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly shall be adequate notice; provided that (i) the principal amount of any such DIP Financing (not including any “roll-up” or indirectly provides for, or has other refinancing (in an amount not in excess of the effect of providing for, the payment (whether in cash or otherwisethen outstanding principal amount thereof) of Senior Obligations therein) does not exceed the Maximum DIP Amount and (ii) the terms of the DIP Financing do not compel the Borrower or any obligation other than Grantor to seek confirmation of a specific Plan of Reorganization (but may require the Senior Lender Claims prior to filing and consummation of a Plan of Reorganization that results in the Discharge of Senior Obligations). Without the Parity Lien Debtprior written consent of the Designated Senior Representative, no Junior Secured Party may, directly or indirectly, provide DIP Financing to the Borrower, any Grantor or any of their Subsidiaries (zit being understood that this sentence shall not limit the ability of any Junior Secured Party to enter into discussions with the Borrower, any Grantor or any of their Subsidiaries to propose or provide DIP Financing to the Borrower, any Grantor or any of their Subsidiaries), unless (i) the Parity Lien Collateral Agent, for itself and on behalf of Senior Secured Parties shall not have made an offer to provide DIP Financing to the TrusteeBorrower, any Grantor or any of their Subsidiaries, and (ii) the proceeds of such DIP Financing provided by such Junior Secured Party shall be sufficient to cause, and shall be applied, among other agentuses, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all to cause a Discharge of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 1 contract
Financing and Sale Issues. (a) If the Company or any other Grantor Senior Borrower shall be subject to any Insolvency or Liquidation Bankruptcy Proceeding and at any time prior to the First-Lien Discharge of Senior Obligations the Senior Agent or the other Senior Financing Parties shall desire to permit the sale, use or lease of cash collateral or to permit the Company or any other Grantor Senior Borrower to obtain financing under Section 363 or Section 364 of Title 11 the Bankruptcy Code or to provide such financing ("DIP Financing"), then, so long as (A) the Subordinated Financing Parties retain the right to request a replacement Lien on the assets covered by the Common Collateral with the same priority as existed prior to the commencement of the United States Code Bankruptcy Proceeding (subject to the liens of any DIP Financing Lender), (B) the material terms and conditions of such DIP Financing (other than with respect to principal amount thereof) are commercially reasonable, and (C) the Lien granted to the Person providing such financing ranks prior to or any similar Bankruptcy Law (“DIP Financing”)pari passu with the pre-petition Lien of the Senior Financing Parties, then the Parity Lien Collateral Subordinated Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt itself and the Noteholdersother Subordinated Financing Parties, and each Subordinated Lender by becoming a Subordinated Lender, agrees that (i) if the Senior Lenders consent to such use of cash collateralit will raise no objection to, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, nor support any other agentPerson objecting to, trustee such sale, use, or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use lease of cash collateral or DIP Financing and they will not request any form of adequate protection or any other relief in connection therewith (except as agreed by the Senior Agent or to the extent expressly permitted in by Section 6.03 and (ii6.3) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000and, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents Obligations are subordinated subordinate to or pari passu with such DIP Financing, they it will subordinate their (and will be deemed hereunder to have subordinated) the Liens in securing the Common Collateral Subordinated Obligations (i) to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on with, if applicable, the same basis terms and conditions as the other Liens securing the Parity Lien Claims Senior Obligations are subordinated to Liens securing Senior Lender Claims under this Agreement unless thereto (u) and such subordination will not alter in any manner the terms and priorities of such this Agreement), (ii) to any adequate protection provided to the Senior Financing Parties and (iii) to any "carve-out" for reasonable professional and United States Trustee fees agreed to by the Senior Financing Parties; provided that the foregoing shall not prohibit the Subordinated Financing Parties from objecting solely to any provisions in any DIP Financing provide for relating to, describing or requiring any provision or content of a plan of reorganization other than provisions solely requiring that the DIP Financing be paid in full in cash. The Subordinated Agent, on behalf of itself and the Subordinated Financing Parties, agrees that it will raise no objection to or oppose a sale or other disposition of any Common Collateral free and clear of its Liens or other claims under Section 363 of the Common Collateral prior Bankruptcy Code if the Required Lenders have consented to such sale or disposition of such assets so long as the respective interests of the Subordinated Financing Parties attach to the occurrence of a default under the DIP Financing documentationproceeds thereof, (v) subject to the terms of this Agreement, and (ii) the material terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not are commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceeding.reasonable. Exh. F-16
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor or any of their Subsidiaries shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s or applicable Subsidiary’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest (or support any person in objecting or otherwise contesting) such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties and (z) any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two (2) Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice. Without the prior written consent of the Designated Senior Representative, no Junior Secured Party may, directly or indirectly provides forindirectly, provide or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior propose DIP Financing to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the TrusteeBorrower, any other agent, trustee Grantor or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all any of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingtheir Subsidiaries.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if a Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative or any other Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit the Company consent (or not object) to a Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Shared Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt will not otherwise contest and the Noteholders, shall will be deemed to have consented to such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso in Section 3.01(a) and they Section 6.03, will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the any Senior Lender Claims under the Senior Collateral Documents Obligations are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly shall be adequate notice; provided that the Junior Secured Parties may object to such DIP Financing or indirectly provides for, or has the effect such use of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agentcollateral as unsecured creditors. Each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that, until the TrusteeDischarge of Senior Obligations has occurred, it will (as applicable) raise no objection to and will not otherwise contest, (a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by the Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law) with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and the Noteholders, does not retain Liens on Senior Collateral or (d) any order relating to a sale or other disposition of any or all of the Common CollateralSenior Collateral for which the Designated Senior Representative has consented that provides, including proceeds arising after to the commencement extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement, provided that the Junior Secured Parties may assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or disposition that could be asserted by an unsecured creditor in an Insolvency or Liquidation Proceeding. Without limiting the foregoing, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Sections 363(e) or Section 363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the same priority relative Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations (other than in respect of contingent indemnification and expense reimbursement claims not then due). No Junior Secured Party or Junior Representative may provide DIP Financing to the Senior Lender Borrower or any other Grantor secured by Liens as existed prior equal to or senior in priority to the commencement Liens securing any Senior Obligations unless the proceeds of such DIP Financing are applied to Discharge the Insolvency or Liquidation ProceedingSenior Obligations, but may provide DIP Financing that is junior in priority to the Liens securing any Senior Obligations.
Appears in 1 contract
Samples: First Lien Security Agreement (Walter Investment Management Corp)
Financing and Sale Issues. (a) If the Company any Borrower or any other Grantor Guarantor shall be subject to any Insolvency or Liquidation Proceeding and at any time prior to the First-Discharge of First Lien Obligations the First Lien Agent or the First Lien Lenders shall desire to permit (or not object to) the sale, use or lease of cash collateral or to permit the Company (or not object to) any other Grantor Borrower to obtain financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar Bankruptcy Law to provide such financing (“DIP Financing”), then, so long as the maximum amount of Indebtedness that may be incurred in connection with such DIP Financing shall not exceed an amount equal to the Maximum First Lien Principal Debt Amount, then the Parity Second Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt itself and the NoteholdersSecond Lien Lenders, and each Second Lien Lender by becoming a Second Lien Lender, agrees that (i) if the Senior Lenders consent to such use of cash collateralit will raise no objection to, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, nor support any other agentPerson objecting to, trustee such sale, use, or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use lease of cash collateral or DIP Financing and they will not request any form of adequate protection or any other relief in connection therewith (except as agreed by the First Lien Agent or to the extent expressly permitted in by Section 6.03 and (ii6.3) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000and, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents First Lien Obligations are subordinated subordinate to or pari passu with such DIP Financing, they it (x) will subordinate their (and will be deemed hereunder to have subordinated) the Liens in securing the Common Collateral Second Lien Obligations (x) to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on with, if applicable, the same basis terms and Intercreditor Agreement conditions as the other Liens securing the Parity First Lien Claims Obligations are subordinated to Liens securing Senior Lender Claims under this Agreement unless thereto (u) and such subordination will not alter in any manner the terms of this Agreement), (y) to any adequate protection provided to the First Lien Agent and the First Lien Lenders and (z) to any “carve-out” for professionals and United States Trustee fees agreed to by the First Lien Agent or the First Lien Lenders, and (ii) agrees that notice received four (4) calendar days prior to the entry of an order approving such DIP Financing provide for usage of cash collateral or approving such financing shall be adequate notice. The Second Lien Agent, on behalf of itself and the Second Lien Lenders, agrees that it will raise no objection to or oppose a sale or other disposition of any Common Collateral free and clear of its Liens or other claims under Section 363 of the Common Collateral prior Bankruptcy Code (or otherwise) if the First Lien Required Lenders have consented to (or supported) such sale or disposition of such assets so long as the respective interests of the Second Lien Lenders attach to the occurrence of a default under the DIP Financing documentationproceeds thereof, (v) subject to the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingthis Agreement.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of First Priority Obligations has occurred, if any Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that if the First-Designated First Priority Representative shall, pursuant to the First Lien Agent shall desire to permit Pari Passu Intercreditor Agreement, consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit the Company consent (or not object) to any Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the First Priority Collateral (“DIP Financing”) and such cash collateral use or DIP Financing is permitted by the First Lien Pari Passu Intercreditor Agreement, it will be deemed to consent to and will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the extent expressly permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith (except that the Second Priority Representative may freely seek and obtain relief granting adequate protection in the form of a replacement lien), then and, to the Parity Lien extent the Liens securing any First Priority Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral Agentto (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to the Liens securing First Priority Obligations under this Agreement, (y) any “carve-out” for professional and United States Trustee fees agreed to by the Designated First Priority Representative, and (z) any adequate protection Liens granted to any First Priority Representative or any First Priority Secured Party. No Second Priority Secured Party may, directly or indirectly, provide or propose DIP Financing to a Borrower or Grantor. Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, further agrees that, without the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the TrusteeDesignated First Priority Representative, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to until the Discharge of First Priority Obligations has occurred, (A) it will raise no objection to (and will not otherwise contest) any motion for relief from the Parity Lien Debt, automatic stay or (z) from any injunction against foreclosure or enforcement in respect of First Priority Obligations or the Parity Lien First Priority Collateral Agent, for itself and on behalf of the Trustee, made by any First Priority Representative or any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceeding.First Priority Secured Party,
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company or Discharge of Senior Lien Obligations has occurred, if any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Senior Lien Agent Representative or any other Senior Lien Secured Party shall desire to permit consent (or not object) to the sale, use or lease of cash collateral or to permit other Collateral under Section 363 of the Company Bankruptcy Code or any other Grantor provision of any other Bankruptcy Law, or to obtain consent (or not object) to any Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar other provision of any other Bankruptcy Law (“DIP Financing”), then the Parity Junior Lien Collateral AgentRepresentative, for itself and on behalf of the Trustee, any each other agent, trustee or representative for Parity Junior Lien Debt and the NoteholdersSecured Party, agrees that (a) it will raise no objection to and will not otherwise contest directly or indirectly any such sale, use or lease of such cash or other collateral or DIP Financing if it complies with the DIP Financing Conditions below, including any proposed orders for such collateral use and/or DIP Financing which are acceptable to the Senior Lien Representative, unless the Senior Lien Representative or any other Senior Lien Secured Party shall oppose or object to such sale, use or lease of cash or other collateral and/or such DIP Financing (in which case neither the Junior Lien Representative nor any other Junior Lien Secured Party shall seek any relief in connection with any of the foregoing that is inconsistent with the relief being sought by the Senior Lien Secured Parties); provided that (a) (i) if the aggregate principal amount of such DIP Financing, together with the Senior Lenders consent Lien Obligations representing principal outstanding under the Senior Lien Debt Documents (or otherwise refinanced with or “rolled up” by the DIP Financing), does not exceed the DIP Consent Limit, (ii) such DIP Financing or cash collateral order (A) 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 such use DIP Financing documentation or a the DIP Financing order or (B) does not require the sale or other liquidation of a material portion of the Shared Collateral prior to a default under such DIP Financing documentation or cash collateralcollateral order (but may include sale or plan milestones providing for the sale or reorganization of each Grantor’s business as a going concern that are intended to cause the applicable Grantor to consummate such sale or reorganization as soon as practicable after the commencement of the Insolvency or Liquidation Proceeding); provided that the foregoing shall not limit the ability of the terms of such DIP Financing or cash collateral order to require that it will be an event of default if a plan of reorganization or plan of liquidation is filed that does not provide for the Discharge of Senior Lien Obligations by no later than the effective date thereof, and (iii) the Liens securing such DIP Financing shall be senior to or pari passu with the Liens of the Senior Lien Representative on the Shared Collateral securing the then outstanding Senior Lien Obligations (collectively, the Parity Lien Collateral Agent“DIP Financing Conditions”); (b) except to the extent permitted by Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they it will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee relief in connection therewith or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to otherwise in such DIP Financing, and Insolvency or Liquidation Proceeding; (c) to the extent the Liens securing the any Senior Lender Claims under the Senior Collateral Documents Lien Obligations are subordinated or pari passu with such DIP Financing or the Senior Lien Obligations are “rolled-up” (or are deemed to have been “rolled up”) into such DIP Financing, they it will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Junior Lien Claims Obligations are so subordinated to Liens securing Senior Lender Claims Lien Obligations under this Agreement unless Agreement, (uy) any adequate protection Liens granted to the terms Senior Lien Secured Parties, and (z) to any “carve-out” for professional fees and costs, United States Trustee fees and costs and other customary fees and costs agreed to by the Senior Lien Representative; (d) it will raise no objection to and will not otherwise contest directly or indirectly any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of such DIP Financing provide for Senior Lien Obligations made by the Senior Lien Representative or any other Senior Lien Secured Party; (e) it will raise no objection to and will not otherwise contest directly or indirectly any exercise by any Senior Lien Secured Party of the right to credit bid Senior Lien Obligations at any sale or other disposition of Senior Lien Collateral under Section 363(k), Section 1129 or any other applicable provision of the Common Bankruptcy Code (or any other Bankruptcy Law or other applicable law); provided that the Junior Lien Representative and the other Junior Lien Secured Parties shall not be deemed to have waived any right to bid in connection with such sale or other disposition, and shall not be deemed to have waived their rights to credit bid on the Collateral prior to in any such sale or other disposition in accordance with Section 363(k), Section 1129 or any other applicable provision of the occurrence Bankruptcy Code (or other Bankruptcy Law), in each case so long as the proceeds of a default under such bid are sufficient for, and applied to, the DIP Financing documentation, (v) Discharge of Senior Lien Obligations in their entirety in accordance with the terms of the Senior Lien Debt Documents concurrently with the consummation of such DIP Financing provide bid or credit bid; (f) it will raise no objection to and will not otherwise contest directly or indirectly any other request for judicial relief made in any court by any Senior Lien Secured Party relating to the lawful enforcement of any Lien on Senior Lien Collateral; (g) it will raise no objection to and will not otherwise contest directly or indirectly, will not seek consultation or consent rights in connection with, and will be deemed to have consented to such relief under Section 363(f) of the Bankruptcy Code or other provision of any other Bankruptcy Law, any order relating to a sale or other disposition of a substantial part assets of any Grantor to which the Senior Lien Representative has consented or not objected (including, without limitation, orders to retain professionals or establish bid and other sale procedures in connection with such sale or other disposition) that provides, to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Lien Obligations and the Junior Lien Obligations will attach to the proceeds of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing sale on the effective date thereof), (w) same basis of priority as the proposed effective interest rate Liens on the Shared Collateral securing the Senior Lien Obligations rank to the Liens on the Shared Collateral securing the Junior Lien Obligations pursuant to this Agreement; provided that the net cash proceeds of any such DIP Financing is not commercially reasonable under sale or other disposition are applied to the circumstances (as reasonably determined in the good faith permanent reduction of the Board Senior Lien Obligations in accordance with Section 4.01; provided, further, that the Junior Lien Representative may raise any objections to any such sale or other disposition that could be raised by any unsecured creditor of Directors of any Grantor; provided that such objections are not based on its status as a secured creditor and are not otherwise inconsistent with this Agreement; and (h) it will not propose or provide any post-petition financing to any Grantor unless no Senior Lien Secured Parties have proposed or are providing any post-petition financing to a Grantor; provided that to the Grantor)extent no Senior Lien Secured Parties have proposed or are providing post-petition financing to a Grantor and any Junior Lien Secured Party proposes post-petition financing, (x) such post-petition financing proposed or provided by such Junior Lien Secured Party shall not be secured by Liens on Shared Collateral with a priority that is equal or senior in priority to the Parity Liens securing any Senior Lien Collateral AgentObligations. The Junior Lien Representative, for itself and on behalf of the Trusteeeach other Junior Lien Secured Party, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, agrees that notice received two (y2) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims Business Days prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement entry of an Insolvency order approving such usage of cash or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency other collateral or Liquidation Proceedingapproving such financing shall be adequate notice.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative or any Senior Priority Secured Party shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrowers’ or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any “carve-out” or administrative charge for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure or enforcement of Senior Priority Collateral pursuant to Section 363(k) of the Bankruptcy Code or other applicable law, (D) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to (and will not otherwise contest) any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to (and will not otherwise contest or oppose) any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral notice received three Business Days prior to the occurrence entry of a default under the DIP Financing documentation, (v) the terms an order approving such usage of such DIP Financing provide for the sale cash or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims collateral or approving such financing shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Second Priority Representative, for itself and the First-Lien Agent on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority Representative or any Senior Priority Secured Party shall desire to permit consent (or not object) to the sale, use or lease of cash or other collateral and/or to consent (or not object) to permit the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the Parity extent permitted by the proviso in Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any “carve-out” or administrative charge for professional and United States Trustee fees agreed to by the Senior Priority Representatives, and (z) all adequate protection liens granted to the Senior Priority Secured Parties, (B) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure or enforcement of Senior Priority Collateral pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or other applicable law, (D) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral, (E) it will raise no objection to (and will not otherwise contest) any election made by any Senior Priority Representative or any other Senior Priority Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, and (F) it will raise no objection to (and will not otherwise contest or oppose) any Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets of any Grantor for which any Senior Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral Agentsecuring the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement. Each Second Priority Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Second Priority Secured Party under its Second Priority Debt and the NoteholdersFacility, agrees that (i) if notice received three Business Days prior to the Senior Lenders consent to entry of an order approving such use usage of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any or other agent, trustee collateral or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing, they will subordinate their Liens in the Common Collateral to approving such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims are subordinated to Liens securing Senior Lender Claims under this Agreement unless (u) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior to the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted in Section 6.03, (y) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation Proceedingnotice.
Appears in 1 contract
Financing and Sale Issues. (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding Proceeding, then each Subordinated Lien Debt Representative, on behalf of itself and each applicable Subordinated Lien Secured Party, agrees that: (a) if the First-First Priority Lien Agent Collateral Trustee and/or the First Priority Lien Secured Parties shall desire to permit the use of cash collateral or to permit the Company or any other Grantor to obtain financing (including on a priming basis) under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision in any Bankruptcy Law (“DIP Financing”), then whether from the Parity First Priority Lien Collateral AgentSecured Parties or any other third party (including, for itself and on behalf but not limited to, any such financing (x) which represents an advance by some or all of the TrusteeFirst Priority Lien Secured Parties following repayment of amounts of First Priority Lien Obligations with cash collateral or (y) the proceeds of which are used, any other agentin whole or in part, trustee to repay First Priority Lien Obligations owed to some or representative for Parity Lien Debt and the Noteholders, agrees that (i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and on behalf all of the TrusteeFirst Priority Lien Secured Parties), any other agent, trustee or representative for Parity Lien Debt it will not object to and the Noteholders, shall be deemed to have consented to will not otherwise contest such use of cash collateral or DIP Financing and they will not request adequate protection or any other relief in connection therewith (except to the extent permitted by the proviso in Section 6.03 and clause (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens Section 3.1(a) and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000Section 6.3), the Parity Lien Collateral Agentand, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the First Priority Liens securing the Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such DIP Financing and any “carve-out” authorized by the bankruptcy court in connection with such DIP Financing, they will subordinate their its Liens in the Common Collateral to such DIP Financing (and all Obligations relating thereto) and the Senior Lender Claims such “carve-out” on the same basis as the other Liens securing the Parity Subordinated Lien Claims are so subordinated to the First Priority Liens securing Senior Lender Claims under this Agreement unless Agreement; (ub) it will not, absent the terms express written consent of such DIP Financing the First Priority Lien Collateral Trustee and the holders of a majority of the First Lien Claims, propose or provide any financing to the Company or any other Grantor under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law; (c) it will not object to and will not otherwise contest and will support any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Priority Claims made by the First Priority Lien Collateral Trustee or any holder of First Priority Claims; (d) it will not object to and will not otherwise contest and will support any exercise by any holder of First Priority Claims of the right to credit bid First Priority Claims at any sale or in foreclosure of First Priority Lien Collateral; (e) it will not object to and will not otherwise contest and will support any other disposition request for judicial relief made in any court by any holder of First Priority Claims relating to the enforcement of any Lien on First Priority Lien Collateral; (f) it will not object to and will not otherwise contest and will support any motion or order relating to a sale of assets of the Common Collateral prior Company or any Grantor to which the occurrence of a default under the DIP Financing documentation, (v) the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity First Priority Lien Collateral AgentTrustee has consented that provides, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection to the extent permitted the sale is to be free and clear of Liens, that the Liens securing the First Priority Claims and the Subordinated Lien Claims will attach to the proceeds of the sale on the same basis of priority as the Liens securing the First Priority Lien Collateral rank to the Liens securing the Subordinated Lien Collateral in accordance with this Agreement, whether or not such proceeds are sufficient to pay all First Priority Claims; and (g) it will not object to and will not otherwise contest, in each case, for any reason premised upon the Subordinated Lien Secured Parties’ rights as junior secured creditors (but not as unsecured creditors), any motion or order relating to a sale of assets of the Company or any Grantor, under Section 6.03363 of the Bankruptcy Code, (y) such DIP Financing directly or indirectly provides forpursuant to a chapter 11 plan, or has otherwise, pursuant to which the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity First Priority Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee Trustee may credit bid some or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common CollateralFirst Priority Claims, including proceeds arising after and that it will be deemed to consent to any such credit bid and the commencement sale of an Insolvency any or Liquidation Proceedingall First Priority Lien Collateral free and clear of any and all Liens, with including, but not limited to, the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingSubordinated Lien Secured Parties, pursuant to Bankruptcy Code Section 363(f)(2).
Appears in 1 contract
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative, any other Senior Representative or any Senior Secured Party shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to shall be adequate notice. Until the Discharge of the Parity Lien DebtSenior Obligations has occurred, or (z) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as applicable) raise no objection to and will not otherwise contest (a) any motion for relief from the Trusteeautomatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and the Noteholders, does not retain Liens on Senior Collateral or (d) any order relating to a sale or other disposition of any or all of the Common CollateralSenior Collateral for which the Designated Senior Representative has consented that provides, including to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Obligations will attach to the proceeds arising after of the commencement sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement, provided that the Junior Secured Parties may assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or disposition that could be asserted by an unsecured creditor in any Insolvency or Liquidation Proceeding; without limiting the foregoing, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Sections 363(e) or Section 363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the same priority relative to Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 1 contract
Samples: Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative, any other Senior Representative or any Senior Secured Party shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no (a) objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Credit Agreement or, if no Credit Agreement then exists, under the other Senior Collateral Debt Documents are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the Trusteeentry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice, (b) objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (c) objection to (and will not otherwise contest) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code, (d) objection to (and will not otherwise contest) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt on Senior Collateral or (e) objection to (and will not otherwise contest or oppose) any order relating to a sale or other disposition of any or all of the Noteholders are not permitted to seek adequate protection Senior Collateral for which the Designated Senior Representative has consented that provides, to the extent permitted in Section 6.03such sale or other disposition is to be free and clear of Liens, (y) such DIP Financing directly or indirectly provides for, or has that the effect Liens securing the Senior Obligations and the Junior Obligations will attach to the proceeds of providing forthe sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment (whether in full in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, does not retain Liens on all of the Common Collateral, including proceeds arising after the commencement of an Insolvency or Liquidation Proceeding, with the same priority relative to the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 1 contract
Samples: Collateral Agreement (Sinclair Broadcast Group Inc)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative or any other Senior Representative shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to Liens securing Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to the Discharge of the Parity Lien Debt, or (z) the Parity Lien Collateral Agentshall be adequate notice. Each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that, until the TrusteeDischarge of Senior Obligations has occurred, it will (as applicable) raise no objection to and will not otherwise contest, (a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by the Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law) with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and the Noteholders, does not retain Liens on Senior Collateral or (d) any order relating to a sale or other disposition of any or all of the Common CollateralSenior Collateral for which the Designated Senior Representative has consented that provides, including to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Obligations will attach to the proceeds arising after of the commencement of an Insolvency or Liquidation Proceeding, with sale on the same basis of priority relative as the Liens on the Shared Collateral securing the Senior Obligations rank to the Senior Lender Liens as existed prior on the Shared Collateral securing the Junior Obligations pursuant to this Agreement, without limiting the commencement foregoing, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Sections 363(e) or Section 363(f) of the Insolvency Bankruptcy Code or Liquidation Proceedingany similar provision of any other Bankruptcy Law. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations.
Appears in 1 contract
Samples: Intercreditor Agreement (SMART Global Holdings, Inc.)
Financing and Sale Issues. (a) If Until the Company Discharge of Senior Obligations has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Agent Designated Senior Representative, any other Senior Representative or any Senior Secured Party shall desire to permit consent (or not object) to, as applicable, the sale, use or lease of cash or other collateral or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision(s) of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), then the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien each Junior Secured Party under its Junior Debt and the NoteholdersFacility, agrees that it will (ias applicable) if the Senior Lenders consent raise no objection to and will not otherwise contest such use of such cash collateralor other collateral or such DIP Financing and, except to the Parity Lien Collateral Agentextent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, for itself and on behalf of the Trustee, any other agent, trustee or representative for Parity Lien Debt and the Noteholders, shall be deemed to have consented to such use of cash collateral and they will not request adequate protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens and the aggregate principal amount of the DIP Financing together with the aggregate principal amount of the First-Lien Indebtedness does not exceed $175,000,000, the Parity Lien Collateral Agent, for itself and on behalf of the Trustee, any other agentrelief in connection therewith and, trustee or representative for Parity Lien Debt and the Noteholders, will not raise any objection to and shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the Senior Lender Claims Obligations under the Senior Collateral Credit Agreement or, if no Senior Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with the Liens securing such DIP Financing, they will subordinate their (and will be deemed hereunder to have subordinated) its Liens in the Common Shared Collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto) and the Senior Lender Claims on the same basis as the other Liens securing the Parity Lien Claims Junior Obligations are so subordinated to the Liens securing the Senior Lender Claims Obligations under this Agreement unless Agreement, (uy) the terms of such DIP Financing provide for the sale or other disposition of any of the Common Collateral prior adequate protection Liens provided to the occurrence of a default under Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the DIP Financing documentationDesignated Senior Representative, (v) and the terms of such DIP Financing provide for the sale or other disposition of a substantial part of the Common Collateral (unless a Discharge of the Parity Lien Claims shall be effected substantially contemporaneously with such sale) or require confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (w) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Grantor), (x) the Parity Lien Collateral AgentDesignated Junior Representative, for itself and on behalf of the Trusteeeach Junior Secured Party under its Junior Debt Facility, any other agent, trustee or representative for Parity Lien Debt and the Noteholders are not permitted to seek adequate protection agrees that notice received two Business Days prior to the extent permitted in Section 6.03, (y) entry of an order approving such usage of cash or other collateral or approving such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any obligation other than the Senior Lender Claims prior to shall be adequate notice. Until the Discharge of the Parity Lien DebtSenior Obligations has occurred, or (z) the Parity Lien Collateral Agenteach Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as applicable) raise no objection to and will not otherwise contest (a) any motion for relief from the Trusteeautomatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations with respect to the Senior Collateral made by Designated Senior Representative, any other agentSenior Representative or any other Senior Secured Party, trustee (b) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral (including, without limitation, pursuant to Section 363(k) of the Bankruptcy Code or representative any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to the Senior Collateral, (c) any other request for Parity judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien Debt and the Noteholders, does not retain Liens on Senior Collateral or (d) any order relating to a sale or other disposition of any or all of the Common CollateralSenior Collateral for which the Designated Senior Representative has consented that provides, including to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Obligations will attach to the proceeds arising after of the commencement sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Obligations pursuant to this Agreement, provided that the Junior Secured Parties may assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or disposition that could be asserted by an unsecured creditor in any Insolvency or Liquidation Proceeding; without limiting the foregoing, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, agrees that it may not raise any objections based on rights afforded by Sections 363(e) or Section 363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, the Junior Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or disposition in accordance with Section 363(k) of the same priority relative to Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Lender Liens as existed prior to the commencement of the Insolvency or Liquidation ProceedingObligations.
Appears in 1 contract
