Common use of Financing Issues Clause in Contracts

Financing Issues. Until the Discharge of Senior Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Senior Representative or any Senior Secured Party shall desire to consent (or not object) to the sale, use or lease of cash collateral or to consent (or not object) to the Company’s or any other Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that (except to the extent permitted by this Section 6.01 and so long as such cash collateral or DIP Financing is in an amount that does not exceed the greater of (A) $70,000,000 and (B) the sum of (1) the aggregate principal amount of Loans and Canadian Loans and drawn Letters of Credit and Canadian Letters of Credit and the face amount of undrawn Letters of Credit and Canadian Letters of Credit under the Combined Credit Agreements replaced or refinanced by any such DIP Financing and (2) 20% of the aggregate principal amount of Loans and Canadian Loans and drawn Letters of Credit and Canadian Letters of Credit and the face amount of undrawn Letters of Credit and Canadian Letters of Credit outstanding under the Combined Credit Agreements on the date of the commencement of such Insolvency or Liquidation Proceeding (the “DIP Cap”)) it will raise no: (a) objection to and will not otherwise contest such sale, use or lease of such cash collateral or such DIP Financing and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a), this Section 6.01, and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection Liens provided to the Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the Senior Representative; (b) objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations and the Shared Collateral made by the Senior Representative or any other Senior Secured Party; (c) objection to (and will not otherwise contest) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral or to exercise any rights under Section 1111(b) of Title 11 of the United States Code with respect to the Shared Collateral; (d) objection to (and will 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 oppose) any order relating to a sale or other disposition of any of the Shared Collateral for which the Senior Representative has consented that provides, to the extent such sale or other disposition is to be free and clear of Liens, (i) that the Liens securing the Senior Obligations and the Second Priority Debt Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Priority Debt Obligations pursuant to this Agreement, (ii) that net Proceeds of such sale shall be applied to reduce the Senior Obligations, and (iii) Second Priority Debt Parties will not have been deemed to have waived the right to bid in cash in connection with the sale; notwithstanding the foregoing, the Second Priority Debt Parties may assert any objection to a sale or disposition of any Shared Collateral that is consistent with the respective rights and obligations of the Senior Secured Parties and the Second Priority Debt Parties under this Agreement (without limiting the foregoing, Second Priority Debt Parties may not raise any objections based on rights afforded by Sections 363(e), (f) and (k) of the Bankruptcy Code to secured creditors or any comparable provision of any other Bankruptcy Law). Each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that notice from the Company received two (2) Business Days prior to the entry of an order approving such usage of cash or other collateral or approving such DIP Financing shall be adequate notice.

Financing Issues. Until the Discharge of Senior Obligations has occurred, if the Company Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the any Senior Representative or any Senior Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or other collateral or to consent (or not object) to the Company’s Borrowers’ or any other Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), then each Second Junior Priority Representative, for itself and on behalf of each Second Junior Priority Debt Party under its Second Junior Priority Debt Facility, agrees that (except to the extent permitted by this Section 6.01 and so long as such cash collateral or DIP Financing is in an amount that does not exceed the greater of (A) $70,000,000 and (B) the sum of (1) the aggregate principal amount of Loans and Canadian Loans and drawn Letters of Credit and Canadian Letters of Credit and the face amount of undrawn Letters of Credit and Canadian Letters of Credit under the Combined Credit Agreements replaced or refinanced by any such DIP Financing and (2) 20% of the aggregate principal amount of Loans and Canadian Loans and drawn Letters of Credit and Canadian Letters of Credit and the face amount of undrawn Letters of Credit and Canadian Letters of Credit outstanding under the Combined Credit Agreements on the date of the commencement of such Insolvency or Liquidation Proceeding (the “DIP Cap”)) it will raise no: (a) no objection to and will not otherwise contest (i) such sale, use or lease of such cash or other collateral, unless each Senior Representative shall oppose or object to such use of cash collateral (in which case, no Junior Priority Representative nor any other Junior Priority Debt Party shall seek any relief in connection therewith that is inconsistent with the relief being sought by the Senior Secured Parties); or (ii) such DIP Financing, unless each Senior Representative shall oppose or object to such DIP Financing (provided that the foregoing shall not prevent the Junior Priority Debt Parties from proposing any other DIP Financing to any Grantors or to a court of competent jurisdiction), and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a), this Section 6.01, ) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Junior Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection Liens provided to the Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the Senior Representatives. Each Junior Priority Representative; (b) , for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, further agrees that, until the Discharge of Senior Obligations has occurred, it will raise no objection to (and will not otherwise contestcontest or oppose (a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations and the Shared Collateral made by the any Senior Representative or any other Senior Secured Party; (c) objection to (and will not otherwise contestb) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral in any Insolvency or to exercise any rights Liquidation Proceeding or otherwise under Section 1111(b363(k) of Title 11 the Bankruptcy Code or any similar provision of the United States Code with respect to the Shared Collateralany other Bankruptcy Law; (d) objection to (and will not otherwise contestc) 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 (d) any election made by any Senior Representative or any other Senior 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, or (e) objection to (and will not otherwise contest or oppose) any order relating to a sale or other disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of the Shared Collateral for assets or property of any Grantor to which the any Senior Representative has consented or not objected that provides, to the extent such sale or other disposition is to be free and clear of Liens, (i) that the Liens securing the Senior Obligations and the Second Junior Priority Debt Obligations will attach to the Proceeds proceeds of the sale or other disposition on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Second Junior Priority Debt Obligations pursuant to this Agreement; provided, (ii) that net Proceeds the Junior Priority Debt Representative, for itself and on behalf of the Junior Priority Debt Parties, reserves the right to raise any objection that could be raised by an unsecured creditor of the Grantors to such proposed bidding procedures prior to approval of such sale shall be applied to reduce procedures by the Senior ObligationsBankruptcy Court; provided, and (iii) Second however, that the Junior Priority Debt Parties will are not have been deemed to have waived any rights to credit bid on the right to bid in cash in connection with the sale; notwithstanding the foregoing, the Second Priority Debt Parties may assert any objection to a sale or disposition of any Shared Collateral that is consistent in any such disposition in accordance with the respective rights and obligations of the Senior Secured Parties and the Second Priority Debt Parties under this Agreement (without limiting the foregoing, Second Priority Debt Parties may not raise any objections based on rights afforded by Sections 363(e), (f) and (kSection 363(k) of the Bankruptcy Code to secured creditors (or any comparable similar provision of under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations. Each Second Junior Priority Representative, for itself and on behalf of each Second Junior Priority Debt Party under its Second Junior Priority Debt Facility, agrees that notice from the Company received two (2) Business Days prior to the entry of an order approving such usage of cash or other collateral or approving such DIP Financing financing shall be adequate notice.