Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding: (a) if the First Lien Representative or any First Lien Secured Party shall desire to permit (or not object to) the use of cash collateral and/or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, will subordinate its Liens in the Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations; (b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party; (c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale; (d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative; (e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection; (f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral; (g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral; (h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and (i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.
Appears in 3 contracts
Samples: Junior Priority Intercreditor Agreement, Junior Priority Intercreditor Agreement (J C Penney Co Inc), Junior Priority Intercreditor Agreement
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Priority Obligations has occurred, on behalf of itself and each Junior Lien Secured Partyif Holdings, agrees that if the Company Notes Issuers, the Borrowers or any other Grantor Debtor shall be subject to any Insolvency or Liquidation Proceeding:
, then (ax) each Second Priority Representative, for itself and 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 the First Lien any Senior Priority Representative or any First Lien Senior Priority Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or 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 (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Priority Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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, any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien 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 DIP Cap Amount (after giving effect to the concurrent Refinancing of any Senior Priority Obligations). Each Second Priority Representative, for itself and on the same basis as the other Liens securing the Junior behalf of each Second Priority Obligations are so subordinated Secured Party under its Second Priority Debt Facility and each Senior Subordinated 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 the First Priority Liens securing the applicable First Lien Obligations;
(band will not otherwise contest) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Priority Obligations made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cB) none it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of them will object to, the right to credit bid Senior Priority Obligations at any sale in foreclosure of Senior Priority Collateral or otherwise contest (under Section 363(k) of the Bankruptcy Code or support any similar provision of any other Person contesting)Bankruptcy Law, (C) 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 and (D) it will raise no objection to (and will not otherwise contest or oppose) any order relating to a sale Disposition of assets of the Company or any Grantor Debtor for which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Priority Obligations and the Junior 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 existing Liens in accordance with 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 Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from priorities set forth in this Agreement, the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect rights of the Collateral, Second Priority Secured Parties or the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, Senior Subordinated Priority Parties under Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, First Lien 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 at 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 Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority assets that could be raised by an unsecured creditor of the First Debtors; and (ii) nothing in this Section 6.01 shall prohibit any Second Priority Liens on Collateral Secured Party or First Lien Collateral Senior Subordinated Priority Party from (and the First Lien Representative and the First Lien Secured Parties agree not 1) exercising its rights to challenge the validity, enforceability, perfection or priority of the Liens 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 Junior Lien Representative and each other Junior Lien Secured Party on Senior Priority Obligations, or (c) objecting to any provision in any proposed DIP Financing relating, describing or requiring the Collateral); and
(i) the Junior Lien material provisions or content of a plan of reorganization or similar dispositive restructuring plan. Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility and each Senior Subordinated Priority Representative, for itself and on behalf of each Junior Lien Secured PartySenior Subordinated Priority Party under its Senior Subordinated Priority Debt Facility, agrees that notice received two three (3) Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition such usage of cash or other collateral or approving such DIP Financing shall be deemed adequate notice. After the Discharge of Senior Priority Obligations each Second Priority Representative and Second Priority Secured Party shall have all of the rights vis-à-vis each Senior Subordinated Priority Representative (for itself and on behalf of each Senior Subordinated Priority Party under its Senior Subordinated Priority Debt Facility) provided to be adequate notice thereofthe Senior 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 Honeywell Indemnitee).
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (Garrett Motion Inc.)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company If any Borrower or any other Grantor Guarantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and at any time prior to the Discharge of First Lien Obligations the First Lien Representative Agent or any the First Lien Secured Party Lenders shall desire to permit (or not object to) the sale, use or lease of cash collateral and/or or to permit the Company (or not object to) any other Grantor Borrower to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law to provide such financing (“DIP Financing”), including if then, so long as the maximum amount of Indebtedness that may be incurred in connection with such DIP Financing is secured by Liens on the Collateral senior in priority shall not exceed an amount equal to the Liens securing the Junior Priority ObligationsMaximum First Lien Principal Debt Amount, then the Junior Second Lien RepresentativeAgent, on behalf of itself and the Second Lien Lenders, and each Junior Second Lien Secured PartyLender by becoming a Second Lien Lender, agrees that it will raise no objection to, and will not nor support any objection other Person objecting to, and will not otherwise contest such use sale, use, or lease of cash collateral or DIP Financing and 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 by Section 6.26.3) and, to the extent the Liens securing the First Lien Obligations are subordinated subordinate to or pari passu with such DIP Financing, it (x) will subordinate its (and will be deemed hereunder to have subordinated) the Liens in securing the Collateral and any other collateral Second Lien Obligations (x) to such DIP Financing with, if applicable, the same terms and conditions as the Liens securing the First Lien Obligations are subordinated thereto (and all Obligations relating theretosuch subordination will not alter in any manner the terms of this Agreement), (y) to any adequate protection liens granted provided to the First Lien Secured Parties, Agent and the First Lien Lenders and (z) to any “carve carve-out” for professional professionals and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, Agent or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object toLenders, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days four (4) calendar days prior to the entry of an order approving such 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 DIP Financing and/or the use, lease, sale or other disposition of cash any Common Collateral free and clear of its Liens or other collateral shall be deemed claims under Section 363 of the Bankruptcy Code (or otherwise) if the First Lien Required Lenders have consented to be adequate notice (or supported) such sale or disposition of such assets so long as the respective interests of the Second Lien Lenders attach to the proceeds thereof, subject to the terms of this Agreement.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Hanesbrands Inc.), First Lien Credit Agreement (Hanesbrands Inc.)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of First Priority Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien Representative or any First Lien Secured Party Priority Representative shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, to and will not otherwise contest such sale, use or lease of such cash or other collateral or and/or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the any First Lien Priority Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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, any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated Representatives and (z) all adequate protection liens granted to the First Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to (and will not otherwise contest (or support any other Person contesting), contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Priority Obligations made by the any First Lien Priority Representative or any other First Lien Priority Secured Party;
, (cC) none it will raise no objection to (and will not otherwise contest) any lawful exercise by any First Priority Secured Party of them 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 object toraise 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 and (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 support any similar provision of any other Person contesting), any order relating to a sale Bankruptcy Law) of assets of the Company or any Grantor for which the any First Lien Priority Representative has consented that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Priority Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Junior Lien Representative may object solely Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition pursuant to and in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity accordance with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of under any other applicable Bankruptcy Law), First Lien Obligations at so long as any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Obligations. Each Second Priority Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a such usage of cash collateral or approving such DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofnotice.
Appears in 2 contracts
Samples: Indenture (Ocwen Financial Corp), Junior Priority Intercreditor Agreement (Ocwen Financial Corp)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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, any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to and will not otherwise contest (or support any other Person contesting), 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 First Lien Senior Obligations or the Senior Priority Collateral made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none of them it will object to, or 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 support other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Person contesting)Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any order other request for judicial relief made in any court by any Senior Priority Secured Party relating to a sale 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 the Company or any Grantor for or to which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds Proceeds of the sale on the same basis of priority as the existing Liens in accordance with on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Junior Lien Representative may object solely Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity accordance with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of under any other applicable Bankruptcy Law), First Lien Obligations at so long as any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Senior Obligations. Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing described in this Section 6.01 shall be deemed to be adequate notice thereofnotice.
Appears in 2 contracts
Samples: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First First-Lien Representative or any First Lien Secured Party Agent shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy United States Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Parity Lien RepresentativeCollateral Agent, for itself and on behalf of itself the Trustee, any other agent, trustee or representative for Parity Lien Debt and each Junior Lien Secured Partythe Noteholders, agrees that it will raise no objection to(i) if the Senior Lenders consent to such use of cash collateral, the Parity Lien Collateral Agent, for itself and will not support on behalf of the Trustee, any objection toother agent, trustee or representative for Parity Lien Debt and will not otherwise contest the Noteholders, shall be deemed to have consented to 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 in Section 6.26.03 and (ii) andif 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 First Lien Obligations Senior Lender Claims under the Senior Collateral Documents are subordinated to or pari passu with such DIP Financing, they will subordinate its their Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to ) and the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, Senior Lender Claims on the same basis as the other Liens securing the Junior Priority Obligations Parity Lien Claims are so subordinated to the First Priority Liens securing Senior Lender Claims under this Agreement unless (u) the applicable First 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 Obligations;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.
(b) none The Parity Lien Collateral Agent, for itself and on behalf of them will object tothe Trustee, or otherwise contest (or support any other Person contesting)agent, trustee or representative for Parity Lien Debt and the Noteholders, agrees that neither it nor they will raise any motion for relief from the automatic stay objection to or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to oppose a sale of assets or other disposition of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be Common Collateral free and clear of Liens, that the its Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim claims under Section 506(c) 363 of the Bankruptcy Code senior if the Senior Lenders have consented to such sale or on a parity with the Liens securing the First Lien Obligations for costs or expenses disposition of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
such assets so long as (i) the Junior interests of the Trustee, any other agent, trustee or representative for Parity Lien RepresentativeDebt, on behalf of itself the Parity Lien Collateral Agent and each Junior Lien Secured Party, agrees that notice received two Business Days prior the Noteholders in the Common Collateral attach to the entry Proceeds in the relative priority scheme set forth in Section 2.01 and subject to the terms of an order approving a DIP Financing and/or this Agreement and (ii) the use, lease, Senior Lenders are not the proposed purchasers with respect to any such sale or other disposition of cash or other collateral shall be deemed to be adequate notice thereofany Common Collateral.
Appears in 2 contracts
Samples: Indenture (Century Aluminum Co), Indenture (Century Aluminum Co)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Centertainment Group Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Company’s or any other Grantor to obtain Centertainment Group Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and and, except solely to the extent permitted by Section 6.03, will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative. Until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on the same basis behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as the other Liens securing the Junior Priority Obligations are so subordinated applicable) raise no objection to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them and will object to, or not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any order court by any Senior Secured Party relating to a the lawful enforcement of any Lien on Senior Collateral or (d) any sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 without limiting the foregoing, each Junior Lien Representative may object solely to any sale or bidding procedures proposed Representative, for any such sale;
(d) none itself and on behalf of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Section 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 2 contracts
Samples: Indenture (Amc Entertainment Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. The Junior Lien Each Representative, for itself and on behalf of itself and each Junior Lien other Secured PartyParty under its Debt Facility, agrees that if that, in the Company or any other Grantor shall be subject to event of any Insolvency or Liquidation Proceeding:
, such Secured Parties (ai) if the First Lien Representative will not oppose or any First Lien Secured Party shall desire object to permit (or not object to) the use of any Shared Collateral constituting cash collateral and/or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar 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”), including if 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 is secured by and DIP Financing Liens on (provided that the Collateral senior in priority foregoing shall not prevent such other Secured Parties or their Affiliates from proposing any other DIP Financing to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf any Grantors or to a court of itself and each Junior Lien Secured Party, agrees that it will raise no objection tocompetent jurisdiction), and will not support any objection to, shall subordinate (and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except be deemed hereunder to the extent permitted by Section 6.2have subordinated) and, to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, will subordinate its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing Liens (and all Obligations 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 granted Liens provided to the First Lien Priority Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Controlling Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
and (biii) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, except to the extent that sale is 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 voiding of the Lien of any Second Priority Representative on the Shared Collateral securing the Second Priority Debt Obligations, which Lien shall remain subject to be free and clear of Liens, that 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 the Junior Priority Obligations will attach by operation of clause (ii) above, senior to the proceeds 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 sale on 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 basis of priority as the existing Liens extent set forth in accordance with this Agreement; provided that . In addition, each Representative, for itself and on behalf of each other Secured Party under its Debt Facility, agrees that, in the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none event of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect Proceeding, such Secured Parties will not oppose or object to (1) any sale, transfer or other disposition of any Shared Collateral free and clear of the CollateralLiens applicable to the 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 First Lien Collateral approval of bidding procedures in connection therewith or any other collateral without related or ancillary matters) (a “363 Sale”), if the prior written consent 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 First Lien Representative;
(e) none Second Priority Secured Parties attach to the net proceeds of them will object to, such sale or otherwise contest (or support any other Person contesting), (i) any request disposition with the same priority and validity as the Liens held by the First Lien Representative or any First Lien Second Priority Secured Party for adequate protection or Parties in such Shared Collateral; provided further that the Second Priority Secured Parties shall retain the right to credit bid their claims (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim and their rights under Section 506(c363(k) of the Bankruptcy Code senior 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 a parity with the Liens securing closing date of such sale of the First Lien Obligations for costs Priority Debt Obligations, or expenses of preserving or disposing (2) the right of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Priority Secured Party of the right to credit bid, 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, First Lien Obligations at the applicable provisions of this Section 7.01 shall only be binding on the Second Priority Secured Parties with respect to any sale DIP Financing to the extent the principal amount of Collateral or First Lien Collateral;
such DIP Financing (h) none together with the principal amount of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the remaining pre-petition First Priority Liens on Collateral or First Lien Collateral (and Debt Obligations) does not exceed the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofCap.
Appears in 1 contract
Financing and Sale Issues. The Junior Until the Discharge of Senior Lien RepresentativeObligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Senior Lien Representative or any First other Senior Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash collateral and/or to permit or 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 (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar other provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each other Junior Lien Secured Party, agrees that (a) it will raise no objection to, and will not support any objection to, 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) the aggregate principal amount of such DIP Financing, together with the Senior 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 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 collateral 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 “DIP Financing Conditions”); (b) except to the extent permitted by Section 6.03, it will not request adequate protection or any other relief in connection therewith or otherwise in such Insolvency or Liquidation Proceeding; (except to the extent permitted by Section 6.2c) and, to the extent the Liens securing the First any Senior Lien Obligations are subordinated to 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, it will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, ) on the same basis as the other Liens securing the Junior Priority Lien Obligations are so subordinated to the First Priority Liens securing Senior Lien Obligations under this Agreement, (y) any adequate protection Liens granted to the applicable First Senior Lien Obligations;
Secured Parties, and (bz) none of them 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 object to, or raise no objection to and will not otherwise contest (directly or support any other Person contesting), indirectly any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Senior Lien Obligations made by the First Senior Lien Representative or any First other Senior Lien Secured Party;
; (ce) none it will raise no objection to and will not otherwise contest directly or indirectly any exercise by any Senior Lien Secured Party of them will object 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 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 in any such sale or other disposition in accordance with Section 363(k), Section 1129 or any other applicable provision of the Bankruptcy Code (or other Bankruptcy Law), in each case so long as the proceeds of such bid are sufficient for, and applied to, the 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 bid or credit bid; (f) it will raise no objection to and will not otherwise contest (directly or support indirectly any other Person contesting)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 assets of the Company or any Grantor for to which the First 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 that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Senior Lien Obligations and the Junior Priority Lien Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 sale or other disposition are applied to the permanent reduction of the Senior Lien Obligations in accordance with Section 4.01; provided, further, that the Junior Lien Representative may object solely raise any objections to any such sale or bidding procedures proposed for other disposition that could be raised by any unsecured creditor of any Grantor; provided that such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections are not based on the First Lien Representative’s or such First Lien Secured Party’s claiming its status as a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity secured creditor and are not otherwise inconsistent with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
this Agreement; and (h) none of them it will challenge (not propose or support provide any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First post-petition financing to any Grantor unless no Senior Lien Secured Parties agree not have proposed or are providing any post-petition financing to challenge a Grantor; provided that to the validity, enforceability, perfection extent no Senior Lien Secured Parties have proposed or priority of the Liens in favor of the Junior Lien Representative are providing post-petition financing to a Grantor and each other any Junior Lien Secured Party proposes post-petition financing, 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 Collateral); and
(i) the Liens securing any Senior Lien Obligations. The Junior Lien Representative, for itself and on behalf of itself and each other Junior Lien Secured Party, agrees that notice received two (2) Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition such usage of cash or other collateral or approving such financing shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrowers’ or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, ) on the same basis as the other Liens securing the Junior Second Priority Debt Obligations are so subordinated to the First Priority Liens securing Senior Obligations under this Agreement, so long as the applicable First Lien Obligations;
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) none the aggregate principal amount of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from loans and the automatic stay or from any injunction against foreclosure or enforcement in respect aggregate face amount of First Lien Obligations made by letters of credit issued but not reimbursed under the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets Senior Priority Debt Documents does not exceed 115% of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free greater of (x) $1,040,000,000 and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challengingy) the validity, enforceability, perfection or priority aggregate principal amount of loans under the First Senior Priority Liens on Collateral or First Lien Collateral (and Debt Documents outstanding at the First Lien Representative and time the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.is entered into,
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrowers’ or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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 adequate protection liens granted to such portion thereof that constitutes rollover of loans under the First Lien Secured PartiesSenior 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 carve-out” for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to and will not otherwise contest (or support any other Person contesting), 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 First Lien Senior Obligations or the Senior Priority Collateral made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none of them it will object to, or 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 support other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Person contesting)Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any order other request for judicial relief made in any court by any Senior Priority Secured Party relating to a sale 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 the Company or any Grantor for or to which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds Proceeds of the sale on the same basis of priority as the existing Liens on the Shared Collateral securing 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 this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of under any other applicable Bankruptcy Law), First Lien Obligations at so long as any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Senior Obligations. Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing described in this Section 6.01 shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (PAE Inc)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First First-Lien Representative or any First Lien Secured Party Agent shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy United States Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien RepresentativeTrustee and the Noteholder Collateral Agent on behalf of themselves and the Noteholders agree that (i) if the Senior Lenders consent to such use of cash collateral, the Trustee and the Noteholder Collateral Agent, on behalf of itself themselves and each Junior Lien Secured Partythe Noteholders, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest shall be deemed to have consented to 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 in Section 6.26.3 and (ii) andif 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 million, the Trustee and the Noteholder Collateral Agent on behalf of 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 First Lien Obligations Senior Lender Claims under the Senior Collateral Documents are subordinated to or pari passu with such DIP Financing, they will subordinate its their Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to ) and the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, Senior Lender Claims on the same basis as the other Liens securing the Junior Priority Obligations Noteholder Claims are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;Senior Lender Claims under this Agreement.
(b) none The Trustee and the Noteholder Collateral Agent, on behalf of them themselves and the Noteholders, agree that they will object to, not raise any objection to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to oppose a sale of assets or other disposition of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be Common Collateral free and clear of Liens, that the its Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim claims under Section 506(c) 363 of the Bankruptcy Code senior if the Senior Lenders have consented to such sale or on a parity with disposition of such assets so long as the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party interests of the right to credit bidTrustee, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Noteholder Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (Agent and the First Lien Representative and Noteholders in the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior Common Collateral attach to the entry Proceeds in the relative priority scheme set forth in Section 2.1 and subject to the terms of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofthis Agreement.
Appears in 1 contract
Samples: Indenture (Century California, LLC)
Financing and Sale Issues. The Junior Lien Representative(a) Until the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor or any of their Subsidiaries shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or 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 (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest (or support any person in objecting or otherwise contesting) such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, Parties and (z) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two (2) Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice. Without the applicable First Lien Obligations;prior written consent of the Designated Senior Representative, no Junior Secured Party may, directly or indirectly, provide or propose DIP Financing to the Borrower, any Grantor or any of their Subsidiaries.
(b) none Each Junior Representative, for itself and on behalf of them each Junior Secured Party under its Junior Debt Facility, further agrees that it will not object to, or otherwise contest (contest, or support any other Person contesting), in objecting to or contesting (i) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (cii) none any lawful exercise by any Senior Secured Party of them will object tothe 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 otherwise contest (or support any similar provision under any other Person contesting)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, (iii) any other request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (iv) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if If the Company or any other Grantor Senior Borrower shall be subject to any Insolvency Bankruptcy Proceeding and at any time prior to the Discharge of Senior Obligations the Senior Agent or Liquidation Proceeding:
(a) if the First Lien Representative or any First Lien Secured Party other Senior Financing Parties shall desire to permit (the sale, use or not object to) the use lease of cash collateral and/or or to permit the Company or any other Grantor Senior Borrower to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law to provide such financing (“"DIP Financing”"), including if 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 Bankruptcy Proceeding (subject to the liens of any DIP Financing Lender), (B) the material terms and conditions of such DIP Financing is secured by Liens on (other than with respect to principal amount thereof) are commercially reasonable, and (C) the Collateral senior in priority Lien granted to the Liens securing Person providing such financing ranks prior to or pari passu with the Junior Priority Obligationspre-petition Lien of the Senior Financing Parties, then the Junior Lien RepresentativeSubordinated Agent, on behalf of itself and the other Subordinated Financing Parties, and each Junior Lien Secured PartySubordinated Lender by becoming a Subordinated Lender, agrees that it will raise no objection to, and will not nor support any objection other Person objecting to, and will not otherwise contest such use sale, use, or lease of cash collateral or DIP Financing and 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 by Section 6.26.3) and, to the extent the Liens securing the First Lien Senior Obligations are subordinated subordinate to or pari passu with such DIP Financing, it will subordinate its (and will be deemed hereunder to have subordinated) the Liens in securing the Collateral and any other collateral Subordinated Obligations (i) to such DIP Financing with, if applicable, the same terms and conditions as the Liens securing the Senior Obligations are subordinated thereto (and all Obligations relating theretosuch subordination will not alter in any manner the terms and priorities of this Agreement), (ii) to any adequate protection liens granted provided to the First Lien Secured Parties, Senior Financing Parties and (iii) to any “carve "carve-out” " for reasonable professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this AgreementSenior Financing Parties; provided that the Junior Lien Representative may object foregoing shall not prohibit the Subordinated Financing Parties from objecting solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay provisions in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object DIP Financing relating to, describing or otherwise contest (requiring any provision or support any content of a plan of reorganization other Person contesting), (i) any request by than provisions solely requiring that the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.paid in full in Exh. F-16
Appears in 1 contract
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party other Senior Representative shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in provision(s) of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to the Liens securing the Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall 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 applicable First Lien Obligations;
Discharge of Senior Obligations has occurred, it will (bas applicable) none raise no objection to and will not otherwise contest, (a) any motion (including under Section 362 of them will object to, the Bankruptcy Code or otherwise contest (or support any similar provision of any other Person contesting), any motion Bankruptcy Law) for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (d) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 , without limiting the foregoing, each Junior Lien Representative may object solely to any sale or bidding procedures proposed Representative, for any such sale;
(d) none itself and on behalf of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Sections 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative(a) Until the Thermo Claim is Paid in Full, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be Obligor becomes subject to any Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or any First Lien Secured Party shall desire Proceeding and Thermo desires to permit (or not object to) the use of cash collateral and/or (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 (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligationswhether from Thermo, any AR Lender or any other Person, then the Junior Lien RepresentativePost Road, for itself and on behalf of itself and each Junior Lien Secured Partythe other Post Road Lenders, agrees that it each of the Post Road Lenders (i) will raise no objection to, be deemed to have consented to and will not support any objection to, and will not otherwise contest object to such use of cash collateral Cash Collateral constituting Thermo Senior Collateral or DIP Financing and Financing, (ii) will not request or accept adequate protection or any other relief in connection therewith with the use of such Cash Collateral constituting Thermo Senior Collateral or such DIP Financing except as set forth in Section 6.3, and (except to the extent permitted by Section 6.2iii) and, to the extent the Liens securing on the First Lien Obligations Thermo Senior Collateral are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in on the Thermo Senior Collateral and to the Liens on the Thermo Senior Collateral securing such DIP Financing; provided that (A)(x) the sum (without duplication) of (i) aggregate principal amount of the DIP Financing, plus the (ii) aggregate principal amount of the Thermo Claim, does not exceed (y) the Thermo First Lien Cap Amount; (B) Post Road retains its Liens with respect to the Thermo Senior Collateral that existed as of the date of the commencement of the applicable Insolvency Proceeding (including proceeds arising after the commencement of such Insolvency Proceeding); (C) any other collateral to 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 arrangements 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 Obligations relating thereto)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 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 adequate protection liens granted Liens on the Thermo Senior Collateral securing the Thermo Claim are subject to the First Lien Secured Partiesa surcharge or are subordinated to an administrative priority claim, and any a professional fee “carve out” for professional and or fees owed to the United States Trustee fees agreed to by Trustee, then the First Lien Representative, Liens on the same basis as the other Liens Thermo Senior Collateral securing the Junior Priority Obligations are so Post Road Claim shall also be subordinated to such interest or claim and shall remain subordinated to the First Priority Liens securing on the applicable First Lien Obligations;Thermo Senior Collateral consistent with this Agreement.
(b) none Until the Post Road Claim is Paid in Full, if any Obligor becomes subject to any Insolvency Proceeding and Post Road desires to permit the use of them will object toCash Collateral constituting Post Road Senior Collateral or proceeds thereof or to permit such Obligor or Obligors to obtain DIP Financing, whether from one or otherwise contest (more of the Post Road Lenders or support any other Person contesting)Person, any motion then Thermo, for relief from itself and on behalf of the automatic stay other AR Lenders, agrees that it and each of the other AR Lenders (i) will be deemed to have consented to and will not object to such use of Cash Collateral constituting Post Road Senior Collateral or from any injunction against foreclosure DIP Financing, (ii) will not request or enforcement in respect of First Lien Obligations made by the First Lien Representative accept adequate protection or any First Lien Secured Party;
other relief in connection with the use of such Cash Collateral constituting Post Road Senior Collateral or such DIP Financing except as set forth in Section 6.3, and (ciii) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens on the Post Road Senior Collateral securing the First Lien Obligations Post Road Claim are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens on the Junior Priority Obligations will attach Post Road Senior Collateral to the proceeds Liens on the Post Road Senior Collateral securing such DIP Financing; provided that (A) Thermo retains its Liens with respect to the Post Road Senior Collateral that existed as of the sale on date of the same basis commencement of priority as the existing Liens in accordance with applicable Insolvency Proceeding (including proceeds arising after the commencement of such Insolvency Proceeding); and (B) any such DIP Financing is otherwise subject to the terms of this Agreement; provided provided, however, that the Junior Lien Representative may object solely to any sale if one or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect more of the Collateral, Post Road Lenders do not offer to provide DIP Financing to the First Lien Collateral extent permitted under this Section 6.1 on or any other collateral without before the prior written consent date of the First Lien Representative;
(e) none of them will object tohearing to approve DIP Financing, or otherwise contest (or support any other Person contesting), (i) any request then Thermo may seek to provide such DIP Financing secured by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based Liens on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code Post Road Senior Collateral senior to or on a parity pari passu with the Liens securing on the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Post Road Senior Collateral (and the First Lien Representative and the First Lien Secured Parties agree Post Road Lenders may object thereto), provided that any such DIP Financing provided by Thermo may not to challenge the validity, enforceability, perfection “roll-up” or priority otherwise include or refinance any pre-petition portion of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofThermo Claim.
Appears in 1 contract
Samples: Intercreditor Agreement (Digerati Technologies, Inc.)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company a Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party other Senior Representative shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit the Company consent (or not object) to a Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Shared Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest and 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 Section 6.03, will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated 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 same basis as the entry of an order approving such usage of cash or other Liens securing collateral or approving such DIP Financing shall be adequate notice; provided that the Junior Priority Secured Parties may object to such DIP Financing or such use of cash collateral 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 Discharge of Senior Obligations are so subordinated has occurred, it will (as applicable) raise no objection to the First Priority Liens securing the applicable First Lien Obligations;
and will not otherwise contest, (ba) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (d) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds Proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Lien Representative Secured Parties may object solely assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition that could be asserted by an unsecured creditor in any an Insolvency or Liquidation Proceeding in respect Proceeding. Without limiting the foregoing, each Junior Representative, for itself and on behalf of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Sections 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority 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 Borrower or any other Grantor secured by Liens on Collateral equal to or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not senior in priority to challenge the validity, enforceability, perfection or priority of the Liens securing any Senior Obligations unless the proceeds of such DIP Financing are applied to Discharge the Senior Obligations, but may provide DIP Financing that is junior in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior priority to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofLiens securing any Senior Obligations.
Appears in 1 contract
Samples: Credit Agreement (Walter Investment Management Corp)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative, any other Senior Representative or any First Lien Senior Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no (a) objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Credit Agreement or, if no Credit Agreement then exists, under the other Senior Debt Documents are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the First Priority Liens securing the applicable First Lien Obligations;
entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice, (b) none of them objection to (and will object to, or not otherwise contest (or support any other Person contesting), contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (c) none objection to (and will not otherwise contest) any lawful exercise by any Senior Secured Party of them 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 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 object to, not otherwise contest) any other request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (e) objection to (and will not otherwise contest (or support any other Person contesting), oppose) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing 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 this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of under any other applicable Bankruptcy Law), First Lien Obligations at so long as any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative, any other Senior Representative or any First Lien Senior Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso in Section 3.01(a)(ii) and Section 6.03, will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice. Until the applicable First Lien Obligations;
Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (bas applicable) none of them raise no objection to and will object to, or not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (d) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Lien Representative Secured Parties may object solely assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition that could be asserted by an unsecured creditor in any Insolvency or Liquidation Proceeding in respect Proceeding; without limiting the foregoing, each Junior Representative, for itself and on behalf of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Section 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Senior Priority Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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, any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” or administrative charge for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to (and will not otherwise contest (or support any other Person contesting), contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of them 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 object toraise 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 support any similar provision of any other Person contesting), any order relating to a sale Bankruptcy Law) of assets of the Company or any Grantor for which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First . Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition such usage of cash or other collateral or approving such DIP Financing shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative(a) Until the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor or any of their Subsidiaries shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or 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 (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest (or support any person in objecting or otherwise contesting) such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, Parties and (z) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two (2) Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice; provided that (i) the applicable First Lien principal amount of any such DIP Financing (not including any “roll-up” or other refinancing (in an amount not in excess of the then 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 other Grantor to seek confirmation of a specific Plan of Reorganization (but may require the filing and consummation of a Plan of Reorganization that results in the Discharge of Senior Obligations;). Without the prior 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 (it 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 Senior Secured Parties shall not have made an offer to provide DIP Financing to the Borrower, 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 uses, to cause a Discharge of Senior Obligations.
(b) none Each Junior Representative, for itself and on behalf of them each Junior Secured Party under its Junior Debt Facility, further agrees that it will not object to, or otherwise contest (contest, or support any other Person contesting), in objecting to or contesting (i) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (cii) none any lawful exercise by any Senior Secured Party of them will object tothe 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 otherwise contest (or support any similar provision under any other Person contesting)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, (iii) any other request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (iv) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if If the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or Proceeding and any First Lien Secured Party Agent shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company Borrower or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior then each Second Priority Obligations, then the Junior Lien RepresentativeAgent, on behalf of itself and each Junior Lien applicable Second Priority Secured Party, agrees that until the Discharge of the Senior Lender Claims has occurred, it will raise no objection to, and will not support any objection to, and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.26.3) and, to the extent the Liens securing the First Lien Obligations Senior Lender Claims under the Senior Lender Documents are subordinated to or pari passu with the Liens securing such DIP Financing, will subordinate its Liens in the Common Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations relating thereto), (y) any adequate protection liens granted Liens provided to the such First Lien Secured Parties, and Agent or the Senior Lenders or (z) any “carve carve-out” or court ordered priority for professional and United States Trustee fees agreed to by the such First Lien RepresentativeAgent or the Senior Lenders, in each case on the same basis as the other Liens securing the Junior Second Priority Obligations Claims are so subordinated to the First Priority Liens securing the Senior Lender Claims under this Agreement. Each Second Priority Agent, on behalf of itself and each applicable First Lien Obligations;
(b) none Second Priority Secured Party, further agrees that until the Discharge of them the Senior Lender Claims has occurred, it will object raise no objection to, or and will not support any objection to, and will not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations Senior Lender Claims made by the First Lien Representative or any First Lien Secured Party;
Agent or any holder of Senior Lender Claims, (b) any lawful exercise by any holder of Senior Lender Claims of the right to credit bid Senior Lender Claims at any sale of Senior Lender Collateral (including pursuant to Section 363(k) or Section 1129(b)(2)(A)(ii) of the Bankruptcy Code or any similar Bankruptcy Law), (c) none any other request for judicial relief made in any court by any holder of them will object toSenior Lender Claims relating to the lawful enforcement of any Lien on Senior Lender Collateral, or otherwise contest (or support any other Person contesting), d) any order relating to a sale of assets of the Company or any Grantor for which the any First Lien Representative Agent has consented that provides, to the extent that the sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations Senior Lender Claims and the Junior Second Priority Obligations Claims will attach to the proceeds of the sale on the same basis of priority as the existing Liens securing the Senior Lender Collateral do to the Liens securing the Second Priority Collateral in accordance with this Agreement; provided , provided, however, that the Junior Lien Representative may object solely Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Common Collateral in any such sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity accordance with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) or Section 1129(b)(2)(A)(ii) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at so long as any such credit bid provides for the payment in full in cash of the Senior Lender Claims, provided further, however, that the Trustee and the holders of Second Priority Claims may raise any objection to the bidding and related procedures proposed to be utilized in connection with such sale or disposition that may be raised by an unsecured creditor of Collateral the Borrower or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofGrantor.
Appears in 1 contract
Samples: Intercreditor Agreement (Matthews International Corp)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative, any other Senior Representative or any First Lien Senior Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice. Until the applicable First Lien Obligations;
Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (bas applicable) none of them raise no objection to and will object to, or not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (d) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Lien Representative Secured Parties may object solely assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition that could be asserted by an unsecured creditor in any Insolvency or Liquidation Proceeding in respect Proceeding; without limiting the foregoing, each Junior Representative, for itself and on behalf of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Sections 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative, any other Senior Representative or any First Lien Senior Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in provision(s) of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to the Liens securing the Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice. Until the applicable First Lien Obligations;
Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (bas applicable) none of them raise no objection to and will object to, or not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (d) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 Lien Representative Secured Parties may object solely assert any objection to the proposed bidding or related procedures to be utilized in connection with any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition that could be asserted by an unsecured creditor in any Insolvency or Liquidation Proceeding in respect Proceeding; without limiting the foregoing, each Junior Representative, for itself and on behalf of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Sections 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Samples: Credit Agreement (OneStream, Inc.)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or any First Lien Secured Party shall desire to permit (or not object to) the use of cash collateral and/or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Lien Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, will subordinate its Liens in the Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Lien Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Lien Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.
Appears in 1 contract
Samples: Pari Passu Intercreditor Agreement (J C Penney Co Inc)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of First Priority Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company any Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) , 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 Designated First Priority Representative shall, pursuant to the First Lien Representative or any First Lien Secured Party shall desire to permit Pari Passu Intercreditor Agreement, consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit the Company consent (or not object) to any Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the First Priority Collateral (“DIP Financing”), including if ) and such cash collateral use or DIP Financing is secured permitted by Liens on the Collateral senior in priority First Lien Pari Passu Intercreditor Agreement, it will be deemed to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself consent to and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 to that the extent permitted by Section 6.2) Second Priority Representative may freely seek and obtain relief granting adequate protection in the form of a replacement lien), and, to the extent the Liens securing the any First Lien Priority Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto), any adequate protection liens granted ) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to the Liens securing First Lien Secured PartiesPriority Obligations under this Agreement, and (y) any “carve carve-out” for professional and United States Trustee fees agreed to by the Designated First Lien 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 same basis as consent of the other Liens securing Designated First Priority Representative, until the Junior Discharge of First Priority Obligations are so subordinated has occurred, (A) it will raise no objection to the First Priority Liens securing the applicable First Lien Obligations;
(band will not otherwise contest) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Priority Obligations or the First Priority Collateral made by the any First Lien Priority Representative or any other First Lien Priority Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.,
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Geo Group Inc)
Financing and Sale Issues. The Junior Until the Discharge of Senior Lien RepresentativeObligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Senior Lien Representative or any First other Senior Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash collateral and/or to permit or 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 (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar other provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, Lender agrees that (i) it will raise no objection to, and will not support any objection to, to and will not otherwise contest directly or indirectly any such sale, use or lease of such cash collateral or other Collateral or DIP Financing and (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 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 the Junior Lien Lender shall not seek any relief in connection with any of the foregoing that is inconsistent with the relief being sought by the Senior Lien Secured Parties); (ii) except to the extent permitted by Section 6.03, it will not request adequate protection or any other relief in connection therewith or otherwise in such Insolvency or Liquidation Proceeding; (except to the extent permitted by Section 6.2iii) and, to the extent the Liens securing the First any Senior Lien Obligations are subordinated to 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, it will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, ) on the same basis as the other Liens securing the Junior Priority Lien Obligations are so subordinated to the First Priority Liens securing Senior Lien Obligations under this Agreement, (y) any adequate protection Liens granted to the applicable First Senior Lien Obligations;
Secured Parties, and (bz) none of them 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 object to, or raise no objection to and will not otherwise contest (directly or support any other Person contesting), indirectly any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Senior Lien Obligations made by the First Senior Lien Representative or any First other Senior Lien Secured Party;
; and (cv) none of them it will object to, or raise no objection to and will not otherwise contest (directly or support indirectly any other Person contesting), request for judicial relief made in any order court by any Senior Lien Secured Party relating to a sale the lawful enforcement of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First on Senior Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this AgreementCollateral; provided that the Junior Lien Representative may object solely to Lender shall not propose any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the post-petition financing. The Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, Lender agrees that notice received two Business Days (2) calendar days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition such usage of cash or other collateral or approving such financing shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Samples: Eighth Supplemental Indenture (Navios Maritime Holdings Inc.)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Senior Priority Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrowers’ or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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, any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” or administrative charge for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to (and will not otherwise contest (or support any other Person contesting), contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of them 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 object toraise 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 support any similar provision of any other Person contesting), any order relating to a sale Bankruptcy Law) of assets of the Company or any Grantor for which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First . Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition such usage of cash or other collateral or approving such financing shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party other Senior Representative shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and, except to the 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations under the Senior 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, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative, and the Designated Junior Representative, for itself and on the same basis as the other Liens securing the behalf of each Junior Priority Obligations are so subordinated Secured Party under its Junior Debt Facility, agrees that notice received two Business Days prior to the First Priority Liens securing entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall 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 applicable First Lien Obligations;
Discharge of Senior Obligations has occurred, it will (bas applicable) none of them raise no objection to and will object tonot otherwise contest, or otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (d) any order relating to a sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 , without limiting the foregoing, each Junior Lien Representative may object solely to any sale or bidding procedures proposed Representative, for any such sale;
(d) none itself and on behalf of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Sections 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or If any other Grantor shall be Debtor is subject to any US Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or Proceeding and any First Lien Senior Secured Party Creditor shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit the Company consent (or not object) to any other Grantor to obtain Debtor obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the US Bankruptcy Code or any similar provision in any Bankruptcy Law (a “US DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations), then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, other Primary Creditor agrees that it will raise no objection to, and it:
(a) will not support raise any objection to, will not support directly or indirectly any objection to or otherwise contest, and will not otherwise contest be deemed to have consented to, such sale, use or lease of such cash or other collateral or such US DIP Financing and will not request adequate protection or any other relief in connection therewith (therewith, except to the extent permitted by Section 6.2Clause 10.4 (Adequate protection);
(b) and, to the extent the Liens Security securing the First Lien Obligations any Senior Secured Liabilities are subordinated to or pari passu with such have the same priority as any Security securing a US DIP Financing, will subordinate (and will be deemed to have subordinated) its Liens in Security securing the Collateral Primary Liabilities owed to it and any other security or collateral securing the Primary Liabilities owed to it to such US DIP Financing (and all Obligations obligations relating thereto), ) in the manner set out in Clause 2 (Ranking and Priority) and the order of application in Clause 17.1 (Order of application) to any adequate protection liens granted to the First Lien Senior Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;Creditors; and
(c) none of them shall not provide or offer to provide any US DIP Financing that is or will object to, be secured by a Security senior or otherwise contest (or support pari passu with the Security securing any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral Senior Secured Liabilities without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Required Senior Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofCreditors.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First First-Lien Representative or any First Lien Secured Party Administrative Agent and the Senior Trustee shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy United States Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien RepresentativeTrustees, the Junior Noteholder Collateral Agents and the Mortgage Tax Collateral Agent, on behalf of itself themselves and each the Junior Lien Secured PartyNoteholders agree that (i) if the Senior Creditors consent to such use of cash collateral, agrees that it will raise no objection tothe Junior Trustees, the Junior Noteholder Collateral Agents and will not support any objection tothe Mortgage Tax Collateral Agent, on behalf of themselves and will not otherwise contest the Junior Noteholders, shall be deemed to have consented to 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 in Section 6.26.3 and (ii) andif the Senior Creditors consent to DIP Financing that provides for priming of or pari passu treatment with the Liens of the Senior Creditors, the Junior Trustees, the Junior Noteholder Collateral Agents and the Mortgage Tax Collateral Agent, on behalf of themselves and the Junior 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 First Lien Obligations Senior Claims under the Senior Collateral Documents and the Senior Noteholder Collateral Documents are subordinated to or pari passu with such DIP Financing, they will subordinate its their Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to ) and the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, Senior Claims on the same basis as the other Liens securing the Junior Priority Obligations Noteholder Claims are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;Senior Claims under this Agreement.
(b) none The Junior Trustees, the Junior Noteholder Collateral Agents and the Mortgage Tax Collateral Agent, on behalf of them themselves and the Junior Noteholders, agree that they will object to, not raise any objection to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to oppose a sale of assets or other disposition of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be Common Collateral free and clear of Liens, that the its Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim claims under Section 506(c) 363 of the Bankruptcy Code senior if the Senior Creditors have consented to such sale or on a parity with disposition of such assets so long as the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor interests of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) Trustees, the Junior Lien Representative, on behalf of itself Noteholder Collateral Agents and each the Junior Lien Secured Party, agrees that notice received two Business Days prior Noteholders in the Common Collateral attach to the entry Proceeds in the relative priority scheme set forth in Section 2.1 and subject to the terms of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofthis Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement (Hovnanian Enterprises Inc)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if If the Company or any other Grantor Senior Borrower shall be subject to any Insolvency Bankruptcy Proceeding and at any time prior to the Discharge of Senior Obligations the Senior Agent or Liquidation Proceeding:
(a) if the First Lien Representative or any First Lien Secured Party other Senior Financing Parties shall desire to permit (the sale, use or not object to) the use lease of cash collateral and/or or to permit the Company or any other Grantor Senior Borrower to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law to provide such financing (“"DIP Financing”"), including if 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 Bankruptcy Proceeding (subject to the liens of any DIP Financing Lender), (B) the material terms and conditions of such DIP Financing is secured by Liens on (other than with respect to principal amount thereof) are commercially reasonable, and (C) the Collateral senior in priority Lien granted to the Liens securing Person providing such financing ranks prior to or pari passu with the Junior Priority Obligationspre-petition Lien of the Senior Financing Parties, then the Junior Lien RepresentativeSubordinated Agent, on behalf of itself and the other Subordinated Financing Parties, and each Junior Lien Secured PartySubordinated Lender by becoming a Subordinated Lender, agrees that it will raise no objection to, and will not nor support any objection other Person objecting to, and will not otherwise contest such use sale, use, or lease of cash collateral or DIP Financing and 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 by Section 6.26.3) and, to the extent the Liens securing the First Lien Senior Obligations are subordinated subordinate to or pari passu with such DIP Financing, it will subordinate its (and will be deemed hereunder to have subordinated) the Liens in securing the Collateral and any other collateral Subordinated Obligations (i) to such DIP Financing with, if applicable, the same terms and conditions as the Liens securing the Senior Obligations are subordinated thereto (and all Obligations relating theretosuch subordination will not alter in any manner the terms and priorities of this Agreement), (ii) to any adequate protection liens granted provided to the First Lien Secured Parties, Senior Financing Parties and (iii) to any “carve "carve-out” " for reasonable professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this AgreementSenior Financing Parties; provided that the Junior Lien Representative may object foregoing shall not prohibit the Subordinated Financing Parties from objecting solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay provisions in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object DIP Financing relating to, describing or otherwise contest (requiring any provision or support any content of a plan of reorganization other Person contesting), (i) any request by than provisions solely requiring that the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens DIP Financing be paid in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representativefull in cash. The Subordinated Agent, on behalf of itself and each Junior Lien Secured Partythe Subordinated Financing Parties, agrees that notice received two Business Days prior it will raise no objection to the entry of an order approving or oppose a DIP Financing and/or the use, lease, sale or other disposition of cash any Common Collateral free and clear of its Liens or other collateral shall be deemed claims under Section 363 of the Bankruptcy Code if the Required Lenders have consented to be adequate notice such sale or disposition of such assets so long as the respective interests of the Subordinated Financing Parties attach to the proceeds thereof., subject to the terms of this Agreement, and (ii) the material terms of such sale or disposition are commercially reasonable. Exh. F-16
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Representative or any First Lien Secured Party Senior Trustee shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy United States Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien RepresentativeTrustee, the Junior Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of itself themselves and each the Junior Lien Secured PartyCreditors agree that (i) if the Senior Creditors consent to such use of cash collateral, agrees that it will raise no objection tothe Junior Trustee, the Junior Collateral Agent and will not support any objection tothe Mortgage Tax Collateral Agent, on behalf of themselves and will not otherwise contest the Junior Creditors, shall be deemed to have consented to such use of cash collateral or so long as the Junior Creditors receive (if requested) adequate protection in the manner permitted in Section 6.3 and (ii) if the Senior Creditors consent to DIP Financing that provides for priming of or pari passu treatment with the Senior Liens, the Junior Trustee, the Junior Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of themselves and the Junior Creditors, will not request adequate protection or raise any other relief in connection therewith (except objection to the extent permitted by Section 6.2) andand shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the First Lien Obligations Senior Claims under the Senior Collateral Documents are subordinated to or pari passu with such DIP Financing, they will subordinate its their Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to ) and the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, Senior Claims on the same basis as the other Liens securing the Junior Priority Obligations Claims are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;Senior Claims under this Agreement.
(b) none The Junior Trustee, the Junior Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of them themselves and the Junior Creditors, agree that they will object to, not raise any objection to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to oppose a sale of assets or other disposition of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be Common Collateral free and clear of Liens, that the its Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim claims under Section 506(c) 363 of the Bankruptcy Code senior if the Senior Creditors have consented to such sale or on a parity with disposition of such assets so long as the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor interests of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) Trustee, the Junior Lien Representative, on behalf of itself Collateral Agent and each the Junior Lien Secured Party, agrees that notice received two Business Days prior Creditors in the Common Collateral attach to the entry Proceeds in the relative priority scheme set forth in Section 2.1 and subject to the terms of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofthis Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement (Hovnanian Enterprises Inc)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Issuer or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or to permit consent (or not object) to the Company Issuer’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations 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) $15,000,000 and (y) the aggregate principal amount of loans under the Senior Priority Debt Documents outstanding at the time the DIP Financing is entered into (for the avoidance of doubt, before giving effect to any rollover of any Indebtedness (including letters of credit) under the Senior Priority Debt Documents into the DIP Financing), any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” for professional and United States Trustee and court fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to and will not otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay in Section 362 of the Bankruptcy Code or any other stay in any Insolvency or Liquidation Proceedings or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations or the Senior Priority Collateral made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none of them it will object to, or 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 support other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Person contesting)Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any order other request for judicial relief made in any court by any Senior Priority Secured Party relating to a sale 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 the Company or any Grantor for or to which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds Proceeds of the sale on the same basis of priority as the existing Liens on the Shared Collateral securing 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 this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support under any other Person challenging) Bankruptcy Law or other applicable law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash and/or in such other form of consideration as may be agreed to by the Senior Priority Secured Parties of the First Senior Obligations. Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three (3) Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing described in this Section 6.01 shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Accelerate Diagnostics, Inc)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Centertainment Group Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First Lien Designated Senior Representative or any First Lien Secured Party shall desire to permit consent (or not object object) to) , as applicable, the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Company’s or any other Grantor to obtain Centertainment Group Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law to be secured by the Senior Collateral (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the then each Junior Priority Obligations, then the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Secured PartyParty under its Junior Debt Facility, agrees that it will (as applicable) raise no objection to, and will not support any objection to, to and will not otherwise contest such use of such cash or other collateral or such DIP Financing and and, except to the extent permitted by Section 6.03, will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien Senior Obligations are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral and any other collateral to (x) such DIP Financing (and all Obligations obligations relating thereto)) on the same basis as the Liens securing the Junior Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection liens granted Liens provided to the First Lien Senior Secured Parties, and (z) to any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Designated Senior Representative. Until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on the same basis behalf of each Junior Secured Party under its Junior Debt Facility, further agrees that it will (as the other Liens securing the Junior Priority Obligations are so subordinated applicable) raise no objection to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them and will object to, or not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations with respect to the Senior Collateral made by the First Lien Designated Senior Representative, any other Senior Representative or any First Lien other Senior Secured Party;
, (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 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) none of them will object to, or otherwise contest (or support any other Person contesting), request for judicial relief made in any order court by any Senior Secured Party relating to a the lawful enforcement of any Lien on Senior Collateral or (d) any sale or other disposition of assets any or all of the Company or any Grantor Senior Collateral for which the First Lien Designated Senior Representative has consented that provides, to the extent that such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with 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 without limiting the foregoing, each Junior Lien Representative may object solely to any sale or bidding procedures proposed Representative, for any such sale;
(d) none itself and on behalf of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien each Junior Secured Party for adequate protection or (ii) under its Junior Debt Facility, agrees that it may not raise any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding objections based on the First Lien Representative’s rights afforded by Section 363(e) or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k363(f) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. In addition, First Lien Obligations at 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 Collateral or First Lien Collateral;
(h) none of them will challenge the Bankruptcy Code (or support any similar provision under any other Person challenging) applicable Bankruptcy Law), so long as any such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofSenior Obligations.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or Proceeding and any First Lien Secured Party Agent shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision provision(s) in any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior then each Second Priority Obligations, then the Junior Lien RepresentativeAgent, on behalf of itself and each Junior Lien applicable Second Priority Secured Party, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.26.3) and, to the extent the Liens securing the First Lien Obligations Senior Lender Claims under the Senior Lender Documents are subordinated to or pari passu with the Liens securing such DIP Financing, will subordinate its Liens in the Common Collateral and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations relating thereto), (y) any adequate protection liens granted Liens provided to the such First Lien Secured Parties, and Agent or the Senior Lenders or (z) any “carve carve-out” from the Common Collateral or court ordered priority for professional and United States Trustee fees agreed to by the such First Lien RepresentativeAgent or the Senior Lenders, in each case on the same basis as the other Liens securing the Junior Second Priority Obligations Claims are so subordinated to the First Priority Liens securing the Senior Lender Claims under this Agreement. Each Second Priority Agent, on behalf of itself and each applicable First Lien Obligations;
(b) none of them Second Priority Secured Party, further agrees that it will object raise no objection to, or and will not support any objection to, and will not otherwise contest (or support any other Person contesting), a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations Senior Lender Claims made by the First Lien Representative or any First Lien Secured Party;
Agent or any holder of Senior Lender Claims, (b) any lawful exercise by any holder of Senior Lender Claims of the right to credit bid Senior Lender Claims at any sale of Senior Lender Collateral (including pursuant to Section 363(k) or Section 1129(b)(2)(A)(ii) of the Bankruptcy Code or any similar Bankruptcy Law), (c) none any other request for judicial relief made in any court by any holder of them will object toSenior Lender Claims relating to the lawful enforcement of any Lien on Senior Lender Collateral, or otherwise contest (or support any other Person contesting), d) any order relating to a sale of assets of the Company or any Grantor Common Collateral for which the any First Lien Representative Agent has consented that provides, to the extent that the sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations Senior Lender Claims and the Junior Second Priority Obligations Claims will attach to the proceeds of the sale on the same basis of priority as the existing Liens securing the Senior Lender Collateral do to the Liens securing the Second Priority Collateral in accordance with this Agreement; provided , provided, however, that the Junior Lien Representative may object solely Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Common Collateral in any such sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity accordance with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) or Section 1129(b)(2)(A)(ii) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at 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 Collateral the Company or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofGrantor.
Appears in 1 contract
Samples: Intercreditor Agreement (SeaWorld Entertainment, Inc.)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Senior Priority Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 (except to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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, any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” or administrative charge for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to (and will not otherwise contest (or support any other Person contesting), contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Senior Obligations made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of them 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 object toraise 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 support any similar provision of any other Person contesting), any order relating to a sale Bankruptcy Law) of assets of the Company or any Grantor for which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First . Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition such usage of cash or other collateral or approving such financing shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First First-Lien Representative or any First Lien Secured Party Agent shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy United States Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien RepresentativeTrustee and the Noteholder Collateral Agent on behalf of themselves and the Noteholders agree that (i) if the Senior Lenders consent to such use of cash collateral, the Trustee and the Noteholder Collateral Agent, on behalf of itself themselves and each Junior Lien Secured Partythe Noteholders, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest shall be deemed to have consented to 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 in Section 6.26.03 and (ii) andif 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 million, the Trustee and the Noteholder Collateral Agent on behalf of 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 First Lien Obligations Senior Lender Claims under the Senior Collateral Documents are subordinated to or pari passu with such DIP Financing, they will subordinate its their Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to ) and the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, Senior Lender Claims on the same basis as the other Liens securing the Junior Priority Obligations Noteholder Claims are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;Senior Lender Claims under this Agreement.
(b) none The Trustee and the Noteholder Collateral Agent, on behalf of them themselves and the Noteholders, agree that they will object to, not raise any objection to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to oppose a sale of assets or other disposition of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be Common Collateral free and clear of Liens, that the its Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim claims under Section 506(c) 363 of the Bankruptcy Code senior if the Senior Lenders have consented to such sale or on a parity with disposition of such assets so long as the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party interests of the right to credit bidTrustee, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Noteholder Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (Agent and the First Lien Representative and Noteholders in the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior Common Collateral attach to the entry Proceeds in the relative priority scheme set forth in Section 2.01 and subject to the terms of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofthis Agreement.
Appears in 1 contract
Samples: Indenture (Century Aluminum Co)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
, then each Subordinated Lien Debt Representative, on behalf of itself and each applicable Subordinated Lien Secured Party, agrees that: (a) if the First Priority Lien Representative or any Collateral Trustee and/or the First Priority Lien Secured Party Parties shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third partyincluding on a priming basis) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on whether from the Collateral senior in priority to the Liens securing the Junior First Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured PartyParties or any other third party (including, agrees that but not limited to, any such financing (x) which represents an advance by some or all of the First Priority Lien Secured Parties following repayment of amounts of First Priority Lien Obligations with cash collateral or (y) the proceeds of which are used, in whole or in part, to repay First Priority Lien Obligations owed to some or all of the First Priority Lien Secured Parties), it will raise no objection to, and will not support any objection to, object to and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by the proviso in clause (ii) of Section 6.23.1(a) and Section 6.3), and, to the extent the First Priority Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing and any “carve-out” authorized by the bankruptcy court in connection with such DIP Financing, will subordinate its Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, ) and any such “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Priority Obligations Subordinated Lien Claims are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
under this Agreement; (b) none it will not, absent the express written consent of them 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, or to and will not otherwise contest (or and will support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations Priority Claims made by the First Priority Lien Representative Collateral Trustee or any holder of First Lien Secured Party;
Priority Claims; (cd) none of them it will not object to, or 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 in foreclosure of First Priority Lien Collateral; (or e) it will not object to and will not otherwise contest and will support any other Person contesting), 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 Company or any Grantor for to which the First Priority Lien Representative Collateral Trustee has consented that provides, to the extent that the sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations Priority Claims and the Junior Priority Obligations Subordinated Lien Claims will attach to the proceeds of the sale on the same basis of priority as the existing 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; provided that the Junior Lien Representative may and (g) it will not object solely to any sale or bidding procedures proposed and will not otherwise contest, in each case, for any such sale;
reason premised upon the Subordinated Lien Secured Parties’ rights as junior secured creditors (d) none but not as unsecured creditors), any motion or order relating to a sale of them will seek relief from assets of the automatic stay Company or any other stay in any Insolvency or Liquidation Proceeding in respect of the CollateralGrantor, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) 363 of the Bankruptcy Code senior Code, pursuant to a chapter 11 plan, or on a parity with the Liens securing otherwise, pursuant to which the First Priority Lien Obligations for costs Collateral Trustee may credit bid some or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority all of the First Priority Liens on Collateral or First Lien Collateral (Claims, and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall it will be deemed to be adequate notice thereofconsent to any such credit bid and the sale of any or all First Priority Lien Collateral free and clear of any and all Liens, including, but not limited to, the Liens of the Subordinated Lien Secured Parties, pursuant to Bankruptcy Code Section 363(f)(2).
Appears in 1 contract
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company any Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
, then each Junior Priority Representative, for itself and on behalf of each Junior Priority Secured Party under its Junior Priority Debt Facility, agrees that (aA) if the First Lien any Senior Priority Representative or any First Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit the Company consent (or not object) to any Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in provision(s) of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) the Liens securing such DIP Financing (and all Obligations obligations relating thereto), any adequate protection liens granted ) on the same basis as the Liens securing the Junior Priority Debt Obligations are so subordinated to the First Lien Secured PartiesLiens securing the Senior Obligations under this Agreement, and (y) any reasonable “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to and will not otherwise contest (or support any other Person contesting), 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 First Lien Senior Obligations or the Senior Priority Collateral made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none of them it will object to, or 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 support other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Person contesting)Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any order other request for judicial relief made in any court by any Senior Priority Secured Party relating to a sale 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 the Company or any Grantor for or to which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Priority Debt Obligations will attach to the proceeds Proceeds of the sale on the same basis of priority as the existing Liens in accordance with on the Shared Collateral securing 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 Lien Representative may object solely Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity accordance with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of under any other applicable Bankruptcy Law), First Lien Obligations at so long as any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) such credit bid provides for the validity, enforceability, perfection or priority payment in full in cash of the First Senior Obligations. Each Junior Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Priority Secured PartyParty under its Junior Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing described in this Section 6.01 shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Samples: Credit Agreement (Dole PLC)
Financing and Sale Issues. The Junior Lien RepresentativeUntil the Discharge of Senior Obligations has occurred, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company Borrower or any other Grantor shall be subject to any Insolvency or Liquidation 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 (aA) if the First Lien any Senior Priority Representative or any First Lien Secured Party shall desire to permit consent (or not object toobject) to the sale, use or lease of cash or other collateral and/or or to permit consent (or not object) to the Company Borrower’s or any other Grantor to obtain Grantor’s obtaining financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in of any other Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, 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 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 to the extent permitted by Section 6.2) and, to the extent the Liens securing the First Lien any Senior Obligations are subordinated to or pari passu with 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 and any other collateral to (x) such DIP Financing (and all Obligations 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), any adequate protection liens granted to the First Lien Secured Parties, and (y) any “carve carve-out” for professional and United States Trustee fees agreed to by the First Lien RepresentativeSenior Priority Representatives, on the same basis as the other Liens securing the Junior Priority Obligations are so subordinated and (z) all adequate protection liens granted to the First Senior Priority Liens securing the applicable First Lien Obligations;
Secured Parties, (bB) none of them it will object to, or raise no objection to and will not otherwise contest (or support any other Person contesting), 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 First Lien Senior Obligations or the Senior Priority Collateral made by the First Lien any Senior Priority Representative or any First Lien other Senior Priority Secured Party;
, (cC) none of them it will object to, or 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 support other sale of Senior Priority Collateral, including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision of any other Person contesting)Bankruptcy Law or other applicable law, (D) it will raise no objection to and will not otherwise contest any order other request for judicial relief made in any court by any Senior Priority Secured Party relating to a sale 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 the Company or any Grantor for or to which the First Lien any Senior Priority Representative has consented or not objected that provides, to the extent that sale such Disposition is to be free and clear of Liens, that the Liens securing the First Lien Senior Obligations and the Junior Second Priority Debt Obligations will attach to the proceeds Proceeds of the sale on the same basis of priority as the existing Liens in accordance with on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement; provided that the Junior Lien Representative may object solely Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay disposition in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity accordance with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code (or any similar provision of under any other applicable Bankruptcy Law), First Lien Obligations at so long as any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) such credit bid provides for the validity, enforceability, perfection or priority payment in full of the First Senior Obligations. Each Second Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, for itself and on behalf of itself and each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, agrees that notice received two three Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition any usage of cash or other collateral described in this Section 6.01 or approving any DIP Financing described in this Section 6.01 shall be deemed to be adequate notice thereofnotice.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (ZoomInfo Technologies Inc.)
Financing and Sale Issues. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if Proceeding and the First First-Lien Representative or any First Lien Secured Party Administrative Agent shall desire to permit (or not object to) the use of cash collateral and/or or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of Title 11 of the Bankruptcy United States Code or any similar provision in any Bankruptcy Law (“DIP Financing”), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Priority Obligations, then the Junior Lien RepresentativeTrustee, the Noteholder Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of itself themselves and each Junior Lien Secured Partythe Noteholders agree that (i) if the Senior Lenders consent to such use of cash collateral, agrees that it will raise no objection tothe Trustee, the Noteholder Collateral Agent and will not support any objection tothe Mortgage Tax Collateral Agent, on behalf of themselves and will not otherwise contest the Noteholders, shall be deemed to have consented to 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 in Section 6.26.3 and (ii) andif 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 $400 million, the Trustee, the Noteholder Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of 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 First Lien Obligations Senior Lender Claims under the Senior Collateral Documents are subordinated to or pari passu with such DIP Financing, they will subordinate its their Liens in the Common Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to ) and the First Lien Secured Parties, and any “carve out” for professional and United States Trustee fees agreed to by the First Lien Representative, Senior Lender Claims on the same basis as the other Liens securing the Junior Priority Obligations Noteholder Claims are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;Senior Lender Claims under this Agreement.
(b) none The Trustee, the Noteholder Collateral Agent and the Mortgage Tax Collateral Agent, on behalf of them themselves and the Noteholders, agree that they will object to, not raise any objection to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to oppose a sale of assets or other disposition of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be Common Collateral free and clear of Liens, that the its Liens securing the First Lien Obligations and the Junior Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representative’s or such First Lien Secured Party’s claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim claims under Section 506(c) 363 of the Bankruptcy Code senior if the Senior Lenders have consented to such sale or on a parity with disposition of such assets so long as the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party interests of the right to credit bidTrustee, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Noteholder Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (Agent and the First Lien Representative and Noteholders in the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior Common Collateral attach to the entry Proceeds in the relative priority scheme set forth in Section 2.1 and subject to the terms of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereofthis Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement (Hovnanian Enterprises Inc)
