Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity. (b) Except as otherwise specifically permitted in this Section 3, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminated, the Collateral Agent will not assert, without the written consent of SVB, any claim, motion or objection in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the case may be, including without limitation any claim, motion or objection seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral. (c) Without limiting the generality of the foregoing, the Collateral Agent agrees that if a Bankruptcy Event occurs, (i) SVB may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral; (ii) SVB may provide postpetition financing for the Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assets. (d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations. (e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB. (f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.
Appears in 4 contracts
Samples: Intercreditor Agreement (Proxim Corp), Intercreditor Agreement (Proxim Corp), Securities Purchase Agreement (Proxim Corp)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity Debtor as debtor in possession and to any trustee in bankruptcy for the estate of such entityDebtor.
(b) Except as otherwise specifically permitted in this Section 32.4, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedSenior Liability Repayment, the Collateral Agent will not no Junior Creditor shall assert, without prior written notice to the written consent of SVBSenior Agent, any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any Collateral in connection with any Bankruptcy Event (other than a claim Insolvency or assertion that SVB has acted in bad faith or in violation of law) Liquidation Proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event Insolvency or Liquidation Proceeding by the Collateral Agent or a Noteholder such Junior Creditor as a secured creditor of the Company or such Guaranteeing Subsidiaryany Debtor, as the case may beincluding, including without limitation limitation, any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, until the Collateral Agent Senior Liability Repayment shall have occurred, each Junior Creditor agrees that if a Bankruptcy Event an Insolvency or Liquidation Proceeding occurs, (i) SVB any of the Senior Creditors may consent or object to the use of cash collateral on such terms and conditions and in such amounts as it shall such Senior Creditors, in good faith determine their sole discretion, may decide, without seeking or obtaining the consent of the Collateral Agent or the Noteholders any Junior Creditor as holders holder of an interest in the Noteholder Collateral; (ii) SVB may provide postpetition financing for the Company or such Junior Creditor shall not oppose any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's Debtor’s use of cash collateral to which the Senior Creditors consent on the basis that their any Junior Creditor’s interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB the Senior Creditors; (iii) one or more of the Senior Creditors may provide financing to any Debtor pursuant to Section 364 of the Bankruptcy Code or other applicable law (such financing, the “Post-Petition Financing”) on such terms and conditions and in good faithsuch amounts as such Senior Creditors, in their sole discretion, may decide, without seeking or obtaining the consent of any Junior Creditor as holder of an interest in the Collateral; and (iv) neither the Collateral Agent nor the Noteholders such Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code such financing on the basis that the any Junior Creditor’s interest of the Noteholders in the Noteholder Collateral is impaired by such sale financing or inadequately protected as a result of by such sale if SVB financing to the extent such financing has consented in good faith to such sale or disposition of such assetsbeen approved by the Senior Creditors.
(d) The Collateral Agent Each Junior Creditor and each Senior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, enforceability or unavoidability seniority of any claim of SVB with respect to the SVB CollateralSenior Creditor’s or Junior Creditor’s claim, (iii) challenging the perfection, enforceability or unavoidability seniority of any liens securing Liens of the SVB Collateral Senior Agents, the Junior Agent or any other Senior Creditor or Junior Creditor, or (iv) asserting any such claims claims, if any, which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB the Senior Agents, the Junior Agent, any other Senior Creditor or Junior Creditor, or the SVB ObligationsSenior Liabilities or Junior Liabilities.
(e) To the extent that SVB any Senior Creditor receives payments or transfers on the SVB Obligations Senior Liabilities or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsSenior Liabilities, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBsuch Senior Creditor.
(f) Notwithstanding any other provision of this Section 32.4, the Collateral Agent and each Noteholder Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholderssuch Junior Creditor, including including, without limitation limitation, any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateralif any.
Appears in 2 contracts
Samples: Intercreditor and Subordination Agreement, Intercreditor and Subordination Agreement (Miller Industries Inc /Tn/)
Intercreditor Arrangements in Bankruptcy. (a) This Notwithstanding any Bankruptcy Event, this Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 36, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedSenior Creditor Repayment, the Collateral Agent will not no Junior Creditor shall assert, without the written consent of SVBSenior Creditor, which consent may be granted or withheld in Senior Creditor’s sole discretion, any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder such Junior Creditor as a secured creditor of the Company or such Guaranteeing Subsidiary, as the case may beapplicable Debtor, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder any Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent each Junior Creditor agrees that if a Bankruptcy Event occurs, (i) SVB Senior Creditor may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall Senior Creditor, in good faith determine its discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders such Junior Creditor as holders holder of an interest in the Noteholder Collateral; (ii) SVB Senior Creditor may (A) provide postpetition financing for to any Debtor or (B) consent to the Company or any Guaranteeing Subsidiary granting of a priming Lien to secure post-petition financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall Senior Creditor, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders such Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders such Junior Creditor shall not oppose the Company's any Debtor’s use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faithSenior Creditor; and (iv) neither the Collateral Agent nor the Noteholders such Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens Liens or other claims of any partyPerson, including the Noteholderssuch Junior Creditor, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB Senior Creditor has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent Each Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, validity or enforceability or unavoidability of Senior Creditor’s claim against any claim of SVB with respect to the SVB CollateralDebtors, (iii) challenging the perfection, perfection or enforceability or unavoidability of any liens securing the SVB Collateral of Senior Creditor’s Liens, or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB Senior Creditor or the SVB ObligationsSenior Debt, if any.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 36, the Collateral Agent and (i) each Noteholder Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Noteholderssuch Junior Creditor, including without limitation any claims secured by the Noteholder Collateral, and (ii) each Junior Creditor shall be entitled to file any pleadings, objections, motions or challenging agreements which (y) assert rights or interests available to unsecured creditors of the perfection, enforceability applicable Debtor arising under either the Bankruptcy Code or unavoidability applicable non-bankruptcy law or (z) which preserve Junior Creditors’ rights to the Collateral after giving effect to the Senior Creditor Repayment which do not adversely affect the rights of any liens securing the Noteholder CollateralSenior Creditor.
Appears in 2 contracts
Samples: Debt Subordination and Intercreditor Agreement (Capital Growth Systems Inc /Fl/), Debt Subordination and Intercreditor Agreement (Capital Growth Systems Inc /Fl/)
Intercreditor Arrangements in Bankruptcy. (aA) This Subordination Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) the applicable sections of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity Debtor as debtor in possession and to any trustee in bankruptcy for the estate of such entityDebtor.
(bB) Except as otherwise specifically permitted in this Section 3Subordination Agreement, until the SVB Obligations have been of Debtor to ACS are paid and satisfied in full and all financing commitments under the SVB Agreements have expired or been terminatedfull, the Collateral Agent will Junior Creditor shall not assert, without the written consent of SVBACS, any claimclam, motion objection, or objection argument in respect of any of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim insolvency or assertion that SVB has acted in bad faith or in violation of law) liquidation proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event insolvency or liquidation proceeding by the Collateral Agent or a Noteholder Junior Creditor as a secured creditor of the Company or such Guaranteeing SubsidiaryDebtor, as the case may beincluding, including without limitation limitation, any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(cC) Without limiting the generality of the foregoing, the Collateral Agent Junior Creditor agrees that that, if a Bankruptcy Event an insolvency or liquidation proceeding occurs, (i1) SVB ACS may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall ACS, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an a subordinate interest in the Noteholder Collateral; (2) ACS may, upon notice to Junior Creditor, (i) provide financing to Debtor, or (ii) SVB may provide postpetition financing for consent to the Company or any Guaranteeing Subsidiary granting of a priority lien to secure post-petition financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall ACS, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose the Company's Debtor’s use of cash collateral on the basis that their Junior Creditor’s interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and ACS, (iv) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens or other claims of any party, including the NoteholdersJunior Creditor, under Section 363 of the Bankruptcy Code on the basis that the Junior Creditor’s interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB ACS has consented in good faith to such sale or disposition of such assets, and (5) Junior Creditor shall not vote in favor of, nor sponsor or support any plan of reorganization of Debtor, that does not propose to pay the Senior Indebtedness in full on the effective date of such plan or that is not consistent with this Subordination Agreement, absent ACS’s consent to a plan that does not pay in full the Senior Indebtedness on the effective date of such plan.
(dD) The Collateral Agent Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (i1) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Subordination Agreement, (ii2) challenging the validity, validity or enforceability or unavoidability of any claim of SVB with respect to the SVB CollateralACS’s claim, (iii) challenging 3)challenging the perfection, perfection or enforceability or unavoidability of any liens securing the SVB Collateral of ACS, or (iv4) asserting any such claims which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB ACS or any of the SVB ObligationsObligations of Debtor to ACS.
(eE) To the extent that SVB ACS receives payments or transfers on the SVB Obligations of Debtor to ACS or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or of any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB Obligationsobligations of Debtor to ACS, or part thereof, intended to be satisfied shall be revived and continue continued in full force and effect enjoying all rights and benefits of this Agreement as if such payments payment or proceeds had not been received by SVBACS.
(fF) Notwithstanding any other provision Subject to the terms of this Section 3Subordination Agreement, the Collateral Agent and each Noteholder (1) Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersJunior Creditor, including including, without limitation limitation, any claims secured by the Noteholder Collateral, if any, and (2) Junior Creditor shall be entitled to file any pleadings, objections, motions or subordination agreements which assert rights or interests available to unsecured creditors of Debtor arising under either the Bankruptcy Code or applicable non-bankruptcy law.
(G) ACS agrees that ACS will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (1) challenging the perfectionvalidity of enforceability of this Subordination Agreement, (2) challenging the validity or enforceability or unavoidability of Junior Creditor's claims, (3) challenging the perfection of enforceability of any liens securing of Junior Creditor, or (4) asserting any claims, if any, which Debtor may hold with respect to Junior Creditor or any of the Noteholder CollateralObligations of Debtor to Junior Creditor, so long as the priority of interests as set forth in this Subordination Agreement are not challenged or contested in any way.
Appears in 2 contracts
Samples: Intercreditor and Debt Subordination Agreement, Intercreditor and Debt Subordination Agreement (HG Holdings, Inc.)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Obligor shall be deemed to apply to such entity Person as debtor in possession and to any trustee in bankruptcy or other fiduciary for the estate of such entityPerson.
(b) Except as otherwise specifically permitted in this Section 32.3, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedNew Lenders Repayment, the Collateral Noteholder Agent will shall not assert, assert without the written consent of SVB, the New Lenders any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder which might adversely impact any Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Noteholder Agent or a Noteholder as a secured or unsecured creditor of the Company or such Guaranteeing Subsidiary, as the case may beany Obligor, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder any Collateral.
(c) Without limiting the generality of the foregoingclause (b) above, the Collateral Noteholder Agent agrees that if a Bankruptcy Event occurs, (i) SVB the New Lenders may consent to the use of cash collateral by an Obligor on such terms and conditions and in such amounts as it shall the New Lenders, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder CollateralAgent; (ii) SVB the New Lenders may (A) provide financing to any Obligor or (B) consent to the granting of a priming Lien on Collateral to secure postpetition financing for the Company or any Guaranteeing Subsidiary financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall the New Lenders, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financingAgent; (iii) neither the Collateral Noteholder Agent nor the Noteholders shall not oppose the Company's an Obligor’s use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB New Lenders has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.thereto; and
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (Electronic Cigarettes International Group, Ltd.)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company Borrower or any Guaranteeing Subsidiary Parent shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 32.7, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedSenior Creditor Repayment, the Collateral Agent will not assert, neither Kabaker nor any Junior Creditor shall assert without the written consent xxxxxxx of SVB, each Senior Creditor any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent Kabaker or a Noteholder such Junior Creditor as a secured creditor of the Company or such Guaranteeing Subsidiary, as the case may beBorrowex xx Xxrent, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder any Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent agrees Kabaker and each Junior Creditor agree that if a Bankruptcy Event occursocxxxx, (i) SVB any Senior Creditor may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall such Senior Creditor, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent Kabaker or the Noteholders any Junior Creditor as holders a holder of an interest in the Noteholder CollateralXxxxxxeral; (ii) SVB any Senior Creditor may (A) provide financing to Borrower and/or Parent or (B) consent to the granting of a priming Lien to secure postpetition financing for the Company or any Guaranteeing Subsidiary financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall such Senior Creditor, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent Kabaker or the Noteholders any Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financingColxxxxxxx; (iii) neither the Collateral Agent Kabaker nor the Noteholders any Junior Creditor shall oppose the CompanyBorrower's use of or Parent's xxx xx cash collateral on the basis that their Kabaker's or any Junior Creditor's interest in the Noteholder Collateral is impaired by ixxxxxxx xy such use or inadequately protected by such use to the extent such use has been approved by SVB in good faithany Senior Creditor; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.and
Appears in 1 contract
Samples: Insurance Brokerage Agreement (Anthony Clark International Insurance Brokers LTD)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 3, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminated, the Collateral Agent will not assert, without the written consent of SVB, any claim, motion or objection in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the case may beCompany, including without limitation any claim, motion or objection seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent agrees that if a Bankruptcy Event occurs, (i) SVB may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral; (ii) SVB may provide postpetition financing for the Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral 3Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.
Appears in 1 contract
Intercreditor Arrangements in Bankruptcy. (a) This Notwithstanding any Bankruptcy Event, this Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 36, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedSenior Creditor Repayment, the Collateral Agent will not no Junior Creditor shall assert, without the written consent of SVBSenior Creditor, which consent may be granted or withheld in Senior Creditor’s sole discretion, any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder such Junior Creditor as a secured creditor of the Company or such Guaranteeing Subsidiary, as the case may beapplicable Debtor, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder any Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent each Junior Creditor agrees that if a Bankruptcy Event occurs, (i) SVB Senior Creditor may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall Senior Creditor, in good faith determine its discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders such Junior Creditor as holders holder of an interest in the Noteholder Collateral; (ii) SVB Senior Creditor may (A) provide financing to any Debtor or (B) consent to the granting of a priming Lien to secure postpetition financing for the Company or any Guaranteeing Subsidiary financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall Senior Creditor, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders such Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders such Junior Creditor shall not oppose the Company's any Debtor’s use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faithSenior Creditor; and (iv) neither the Collateral Agent nor the Noteholders such Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens Liens or other claims of any partyPerson, including the Noteholderssuch Junior Creditor, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB Senior Creditor has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent Each Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, validity or enforceability or unavoidability of Senior Creditor’s claim against any claim of SVB with respect to the SVB CollateralDebtors, (iii) challenging the perfection, perfection or enforceability or unavoidability of any liens securing the SVB Collateral of Senior Creditor’s Liens, or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB Senior Creditor or the SVB ObligationsSenior Debt, if any.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 36, the Collateral Agent and (i) each Noteholder Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the Noteholderssuch Junior Creditor, including without limitation any claims secured by the Noteholder Collateral, and (ii) each Junior Creditor shall be entitled to file any pleadings, objections, motions or challenging agreements which (y) assert rights or interests available to unsecured creditors of the perfection, enforceability applicable Debtor arising under either the Bankruptcy Code or unavoidability applicable non-bankruptcy law or (z) which preserve Junior Creditors’ rights to the Collateral after giving effect to the Senior Creditor Repayment which do not adversely affect the rights of any liens securing the Noteholder CollateralSenior Creditor.
Appears in 1 contract
Samples: Debt Subordination and Intercreditor Agreement (Capital Growth Systems Inc /Fl/)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Obligor shall be deemed to apply to such entity Person as debtor in possession and to any trustee in bankruptcy for the estate of such entityPerson.
(bi) Except as otherwise specifically permitted in this Section 32.4, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedWhite Oak Repayment, the Collateral Agent will Cree shall not assert, assert without the written consent of SVB, White Oak any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any White Oak Priority Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder Cree as a secured creditor of the Company or such Guaranteeing Subsidiary, as the case may beany Obligor, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of any White Oak Priority Collateral.
(ii) Except as otherwise specifically permitted in this Section 2.4, until the SVB Cree Repayment, White Oak shall not assert without the written consent of Cree any claim, motion, objection, or argument in respect of any Cree Priority Collateral in connection with any Bankruptcy Event which could otherwise be asserted or raised in connection with such Bankruptcy Event by White Oak as a secured creditor of any Obligor, including without limitation any claim, motion, objection or argument seeking adequate protection or relief from the Noteholder automatic stay in respect of any Cree Priority Collateral; provided, however, that White Oak may assert and exercise the use and access rights with respect to the Cree Priority Collateral contemplated by Section 2.3(a).
(c) Without limiting the generality of the foregoing, the Collateral Agent Cree agrees that if a Bankruptcy Event occurs, (i) SVB White Oak may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall White Oak, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder CollateralCree; (ii) SVB White Oak may (A) provide postpetition post-petition financing for to any Obligor or (B) consent to the Company or any Guaranteeing Subsidiary granting of a priming Lien to secure post-petition financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall White Oak, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financingCree; (iii) neither the Collateral Agent nor the Noteholders Cree shall not oppose the Company's any Obligor’s use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use that White Oak has been approved by SVB in good faithconsented thereto; and (iv) neither the Collateral Agent nor the Noteholders Cree shall not oppose any sale or other disposition of any assets comprising part of the Noteholder White Oak Priority Collateral (or the sale or bidding procedures with respect thereto) free and clear of Liens or other claims of any party, including Cree, under Section 363 of the Bankruptcy Code if White Oak has consented to such sale or disposition of such assets. Cree shall not provide or participate in any post-petition financing to any Obligor.
(d) White Oak shall not oppose any sale or other disposition of any assets comprising part of the Cree Priority Collateral free and clear of security interests and liens Liens or other claims of any party, including the NoteholdersWhite Oak, under Section 363 of the Bankruptcy Code on the basis that the White Oak’s interest of the Noteholders in the Noteholder such Cree Priority Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB Cree has consented in good faith to such sale or disposition of such assets; provided, however, that any such sale or other disposition of any of the Cree Priority Collateral shall be subject to White Oak’s use and access rights with respect to the Cree Priority Collateral contemplated by Section 2.3(a).
(de) The Collateral Agent Cree agrees that it will not initiate, prosecute, encourage, or assist with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements this Agreement (whether before, during or the SVB Subsidiary Agreementsafter any Bankruptcy Event), (ii) challenging the validity, validity or enforceability or unavoidability of White Oak’s claim in connection with any claim of SVB with respect to the SVB CollateralBankruptcy Event, (iii) challenging the perfection, perfection or enforceability or unavoidability of any liens securing of White Oak’s Liens on any of the SVB Collateral (subject to the relative priorities and limitations on remedies set forth herein), or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary Obligor may hold with respect to SVB White Oak or the SVB ObligationsWhite Oak Debt, if any.
(ef) White Oak agrees that it will not initiate, prosecute, encourage, or assist with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of this Agreement (whether before, during or after any Bankruptcy Event), (ii) challenging the validity or enforceability of Cree’s claim in connection with any Bankruptcy Event, (iii) challenging the perfection or enforceability of any of Cree’s Liens on any of the Collateral (subject to the relative priorities and limitations on remedies set forth herein), or (iv) asserting any claims which any Obligor may hold with respect to Cree or the Cree Debt, if any.
(g) (i) To the extent that SVB White Oak receives payments or transfers on the SVB Obligations White Oak Debt or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsWhite Oak Debt, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBWhite Oak.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.
Appears in 1 contract
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company Borrower or any Guaranteeing Subsidiary a Credit Party shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 33.6, until the SVB Obligations have Tranche B Indebtedness has been paid in full in cash and all financing commitments under satisfied, neither the SVB Agreements have expired or been terminatedHolders, nor the Collateral Agent will not assertAgent, on their behalf, shall assert without the written consent of SVB, the Majority Tranche B Lenders any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder Tranche B Priority Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by such Holders or the Collateral Agent or a Noteholder acting on their behalf as a creditor of the Company Borrower or such Guaranteeing Subsidiary, as any Credit Party with a Lien on the case may beTranche B Priority Collateral, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Tranche B Priority Collateral.
(c) Except as otherwise specifically permitted in this Section 3.6, neither the Tranche A Lenders, nor the Agent or Congress, on their behalf, nor the Revolving Loan Lender shall assert without the written consent of (x) the Majority Tranche B Lenders and (y) the Majority Holders any claim, motion, objection, or argument in respect of Tranche B Priority Collateral in connection with any Bankruptcy Event which could otherwise be asserted or raised in connection with such Bankruptcy Event by such Tranche A Lenders or the Agent or Congress acting on their behalf or the Revolving Loan Lender as a creditor of the Borrower or any Credit Party with a Lien on the Tranche B Priority Collateral, including without limitation any claim, motion, objection or argument seeking adequate protection or relief from the automatic stay in respect of the Tranche B Priority Collateral.
(d) Except as otherwise specifically permitted in this Section 3.6, until the Tranche A Indebtedness has been paid in full in cash and satisfied and the Revolving Loan Obligations have been paid in full in cash and satisfied and the Revolving Loan Agreements have been terminated, neither the Holders, nor the Tranche B Lenders shall assert without the written consent of the Majority Tranche A Lenders any claim, motion, objection, or argument in respect of Tranche A Priority Collateral in connection with any Bankruptcy Event which could otherwise be asserted or raised in connection with such Bankruptcy Event by such Holders or the Tranche B Lenders as a creditor of the Borrower or any Credit Party with a Lien on the Tranche A Priority Collateral, including without limitation any claim, motion, objection or argument seeking adequate protection or relief from the automatic stay in respect of the Tranche A Priority Collateral.
(e) Without limiting the generality of the foregoing, the Collateral Agent agrees Holders, the Tranche A Lenders and the Revolving Loan Lender agree that if a Bankruptcy Event occurs, the Holders, the Tranche A Lenders and the Revolving Loan Lender shall not oppose (i) SVB may consent to and shall cause the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral; (iiCongress not to oppose) SVB may provide postpetition financing for the Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Tranche B Priority Collateral free and clear of security interests and interests, liens or other claims of any party, including any Holder, any Tranche A Lender or the NoteholdersRevolving Loan Lender, under Section 363 of the Bankruptcy Code on the basis that the Holders', the Tranche A Lenders' or the Revolving Loan Lender's interest of the Noteholders in the Noteholder Tranche B Priority Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has the Tranche B Lenders or the Agent, on behalf of the Tranche B Lenders, or the Holders or the Agent on behalf of the Holders, have consented in good faith to such sale or disposition of such assets.
(df) Without limiting the generality of the foregoing, the Holders and the Tranche B Lenders agree that if a Bankruptcy Event occurs, the Holders and Tranche B Lenders shall not oppose (and shall cause the Agent not to oppose) any sale or other disposition of any assets comprising part of the Tranche A Priority Collateral free and clear of security interests, liens or other claims of any party, including any Holder or any Tranche B Lender, under Section 363 of the Bankruptcy Code on the basis that the Holders' or Tranche B Lenders' interest in the Tranche A Priority Collateral is impaired by such sale or inadequately protected as a result of such sale if the Tranche A Lenders or any agent, on behalf of the Tranche A Lenders or the Revolving Loan Lender, has consented to such sale or disposition of such assets.
(g) The Collateral Agent agrees Tranche A Lenders and the Revolving Loan Lender agree that it they will not (nor cause the Agent or Congress to) initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, validity or enforceability or unavoidability of any Tranche B Lender's claim (or the claim of SVB the Agent on behalf of any Tranche B Lender) with respect to the SVB Tranche B Priority Collateral, (iii) challenging the perfection, perfection or enforceability or unavoidability of any liens securing the SVB Collateral First Priority Real Estate Liens or (iv) asserting any such claims which the Company Borrower or any Guaranteeing Subsidiary Credit Party may hold with respect to SVB the Tranche B Lenders or the SVB ObligationsTranche B Indebtedness, if any.
(eh) The Holders agree that they will not (nor cause the Agent to) initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of this Agreement, (ii) challenging the validity or enforceability of any Tranche B Lender's claim or any Tranche A Lender's claim (or the claim of the Agent on behalf of any Tranche B Lender or the claim of the Agent or Congress on behalf of any Tranche A Lender) with respect to the Tranche B Priority Collateral, (iii) challenging the perfection or enforceability of any First Priority Real Estate Liens or Second Priority Real Estate Liens or (iv) asserting any claims which the Borrower or any Credit Party may hold with respect to (A) the Tranche B Lenders or the Tranche B Indebtedness, if any or (B) the Tranche A Lenders or the Tranche A Indebtedness, if any.
(i) The Agent, the Holders and the Tranche B Lenders agree that they will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of this Agreement, (ii) challenging the validity or enforceability of any Tranche A Lender's claim (or the claim of the Agent on behalf of any Tranche A Lender) or the Revolving Loan Lender's claim with respect to the Tranche A Priority Collateral or (iii) asserting any claims which the Borrower or any Credit Party may hold with respect to the Tranche A Lenders, the Tranche A Indebtedness, the Revolving Loan Lender or the Revolving Loan Obligations, if any.
(j) To the extent that SVB the any Tranche B Lender or any Tranche A Lender receives payments or transfers on in respect of the SVB Obligations Tranche B Indebtedness or Tranche A Indebtedness or proceeds of the SVB Tranche B Priority Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsTranche B Indebtedness or Tranche A Indebtedness, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBsuch Tranche B Lender or Tranche A Lender, as applicable.
(fk) To the extent that the any Tranche A Lender receives payments or transfers in respect of the Tranche A Indebtedness or proceeds of the Tranche A Priority Collateral or the Revolving Loan Lender receives payments or transfers in respect of the Revolving Loan Obligations or proceeds of the Tranche A Priority Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the Tranche A Indebtedness, or part thereof, or the Revolving Loan Obligations, as the case may be, intended to be satisfied shall be revived and continue in full force and effect as if such payments or proceeds had not been received by such Tranche A Lender or the Revolving Loan Lender, as the case may be.
(l) Notwithstanding any other provision of this Section 3Section, (i) the Tranche B Lenders (or the Agent on their behalf), the Collateral Holders (or the Agent on their behalf), the Tranche A Lenders (or the Agent on their behalf) and each Noteholder the Revolving Loan Lender shall be entitled to file any necessary responsive pleadings, motions, objections or defensive pleadings in opposition agreement which assert rights or interests available to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance unsecured creditors of the claims of Borrower or any Credit Party arising under either the Noteholders, including without limitation Bankruptcy Code or applicable non-bankruptcy law and (ii) the Lenders and the Holders shall be entitled to make any claims secured by indemnity claim afforded any such Lender or Holder under the Noteholder Collateral, Participation Agreement or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateralother Operative Agreement.
Appears in 1 contract
Samples: Participation Agreement (Pep Boys Manny Moe & Jack)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 3, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminated, the Collateral Agent will not assert, without the written consent of SVB, any claim, motion or objection in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the case may beCompany, including without limitation any claim, motion or objection seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent agrees that if a Bankruptcy Event occurs, (i) SVB may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral; (ii) SVB may provide postpetition financing for the Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.
Appears in 1 contract
Intercreditor Arrangements in Bankruptcy. Notwithstanding anything herein to the contrary, upon the occurrence of any Bankruptcy Event with respect to any Credit Party:
(a) This Credit Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Credit Party shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 3The Required First Lien Lenders shall have the exclusive right, until the SVB Obligations have been paid in full and on behalf of all financing commitments under the SVB Agreements have expired or been terminated, the Collateral Agent will not assert, without the written consent of SVB, any claim, motion or objection in respect of the SVB Collateral Lenders, to direct the Administrative Agent to contest or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the case may be, including without limitation any claim, motion or objection seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent agrees that if a Bankruptcy Event occurs, consent to (i) SVB may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral; by any Credit Party, (ii) SVB may provide postpetition the disposition of assets by any Credit Party under Section 363 of the Bankruptcy Code and (iii) the granting of a priming or pari passu Lien to secure post-petition financing for the Company or any Guaranteeing Subsidiary provided pursuant to Section 364 of the Bankruptcy Code and not constituting financing under this Agreement, provided that the Administrative Agent shall have taken all reasonable steps to seek adequate protection on behalf of the Lenders. Any Lender that receives adequate protection payments or other applicable law and on such terms and conditions and distributions of any kind directly from any Person other than the Administrative Agent in such amounts as it shall in good faith determine without seeking respect of any Collateral or obtaining the consent interests of the Collateral Lenders therein shall turn over such payments or distribution to the Administrative Agent for distribution in accordance with Section 2.12 hereof.
(c) Each SLT Loan Lender agrees not to (i) contest (A) the validity or enforceability of this Agreement, (B) the validity, priority or enforceability of the Liens granted to the Administrative Agent pursuant to the Security Documents or (C) the relative rights and duties of the holders of the First Lien Obligations and the Second Lien Obligations arising under this Agreement or any of the other Credit Documents; (ii) contest, or vote for a plan of reorganization which would have the effect of contesting, (A) the amount of any interest rate or fees payable on any First Lien Obligations or the date for maturity, scheduled amortization or mandatory prepayments for any First Lien Obligations or (B) the Administrative Agent or the Noteholders First Lien Lenders receiving a Lien or being granted an administrative claim in connection with adequate protection, use of cash collateral or post-petition financing under Sections 361, 363, or 364 of the Bankruptcy Code or otherwise, so long as holders any such Lien or claim inures to the benefit of an interest in the Noteholder Collateral, and neither SLT Loan Lenders on a second priority basis consistent with the Collateral Agent nor the Noteholders shall oppose such financingterms of this Agreement; (iii) neither contest any action or inaction taken by the Collateral Administrative Agent nor at the Noteholders shall oppose direction of the Company's use of cash collateral on the basis that their interest Required First Lien Lenders in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faithaccordance with clause (b) above; and (iv) neither contest any post-petition financing provided by one or more of the Collateral Lenders pursuant to Section 364 of the Bankruptcy Code on terms acceptable to the Required First Lien Lenders and not constituting financing under this Agreement, provided that the Administrative Agent nor shall have taken all reasonable steps to seek adequate protection on behalf of the Noteholders shall oppose any sale Lenders; (v) contest or other withhold consent from the disposition of assets by any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, Credit Party under Section 363 of the Bankruptcy Code on the basis that the interest Code; (vi) make an election pursuant to Section 1111(b) of the Noteholders Bankruptcy Code without the consent of the Required First Lien Lenders (which consent shall not be unreasonably withheld); (vii) contest the value of any claims of First Lien Lenders arising under the Credit Documents under Section 506(a) of the Bankruptcy Code; (viii) take any action or vote in any way so as to contest the Noteholder Collateral is impaired by payment of interest, fees and expenses arising under the Credit Documents as provided under Section 506(b) of the Bankruptcy Code; or (ix) seek to have the automatic stay lifted with respect to any Collateral, to appoint a Chapter 11 trustee under Section 1104 of the Bankruptcy Code or to convert or dismiss any proceeding under Section 1112 of the Bankruptcy Code, in each case without the prior written consent of the Required First Lien Lenders; provided, that if the Administrative Agent seeks such sale aforementioned relief, the Lenders shall join in any such motion or inadequately protected as a result of application seeking such sale if SVB has consented in good faith to such sale or disposition of such assetsrelief.
(d) The Collateral Agent Each Lender agrees that it will not initiate or prosecute to take any claim, action or other proceeding vote in any way so as to contest or withhold consent from any plan of reorganization which is accepted by the Required First Lien Lenders and which treats the claims of all of the Lenders as allowed claims under such plan, provided that any Lender (i) challenging the validity or enforceability may vote against confirmation of a reorganization plan that has a material adverse effect on such Lender's claim and violates Section 1129(a)(7)(A) of the SVB Agreements or the SVB Subsidiary AgreementsBankruptcy Code with respect to that claim, and (ii) challenging may object to confirmation of such a plan on the validity, enforceability or unavoidability grounds that it does not satisfy the requirements of any claim Section 1129(a)(7)(A) of SVB the Bankruptcy Code with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB ObligationsLender's claim.
(e) To Subject to the extent that SVB receives payments or transfers on limitations set forth in this Agreement and the SVB other Credit Documents, the Administrative Agent may, but is not required to, file proofs of claim and other pleadings and motions with respect to any First Lien Obligations, any Second Lien Obligations or proceeds the Collateral in any proceeding under Bankruptcy Laws. In furtherance of the SVB Collateral which foregoing, the Lenders hereby appoint the Administrative Agent as their attorney-in-fact, with full authority in the place and stead of the Lenders and full power of substitution and in the name of the Lenders or otherwise, to execute and deliver any document or instrument that the Administrative Agent is required or permitted to deliver pursuant to this Section 11.3(f), such appointment being coupled with an interest and irrevocable.
(f) If, in any receivership, bankruptcy or insolvency proceeding, debt obligations of the reorganized Credit Party secured by Liens upon any property of the reorganized Credit Party are subsequently invalidateddistributed, declared to be fraudulent or preferential, set aside and/or required to be repaid pursuant to a trusteeplan of reorganization or similar dispositive restructuring plan, receiver or any other party under any bankruptcy or other applicable lawboth on account of the First Lien Obligations and the Second Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same property, the provisions of this Credit Agreement will survive the distribution of such payment or proceeds received, debt obligations pursuant to such plan and will apply with like effect to the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if Liens securing such payments or proceeds had not been received by SVBdebt obligations.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.
Appears in 1 contract
Samples: Credit Agreement (Juno Lighting Inc)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company Client or any Guaranteeing Subsidiary Guarantor shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 3Section, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedSLR Repayment, the Collateral Agent will Debenture Creditor shall not assert, assert without the written consent of SVB, SLR any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any SLR Priority Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder Debenture Creditor as a secured creditor of the Company Client or such Guaranteeing Subsidiary, as the case may beGuarantor, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder any SLR Priority Collateral.
(c) Without limiting the generality of the foregoingNeither party shall initiate, the Collateral Agent agrees that if a Bankruptcy Event occursprosecute, (i) SVB may consent encourage, or assist with any other person to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral; (ii) SVB may provide postpetition financing for the Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, validity or enforceability or unavoidability of any claim other party’s claim, (ii) challenging the perfection or enforceability of SVB with respect to the SVB Collateralany of any Lien, of another party or (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary Client may hold with respect to SVB SLR, Debenture Creditor or the SVB ObligationsSLR Indebtedness or EB Indebtedness, if any.
(ed) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, Subject to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits provisions of this Agreement as if such payments or proceeds had not been received by SVB.
Agreement, (fi) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder Debenture Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersDebenture Creditor, including without limitation any claims secured by the Noteholder Collateral, if any, and (ii) Debenture Creditor shall be entitled to file any pleadings, objections, motions or challenging agreement which assert rights or interests available to unsecured creditors of Client arising under either the perfectionBankruptcy Code or applicable non-bankruptcy law.
(e) Notwithstanding any other provision of this Section, enforceability (i) SLR shall be entitled to file any necessary responsive or unavoidability defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of SLR, including without limitation any liens securing claims secured by the Noteholder Collateral, if any, and (ii) SLR shall be entitled to file any pleadings, objections, motions or agreement which assert rights or interests available to unsecured creditors of Client arising under either the Bankruptcy Code or applicable non-bankruptcy law.
Appears in 1 contract
Samples: Intercreditor Agreement (GameSquare Holdings, Inc.)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate estate(s) of such entity.
(b) Except as otherwise specifically permitted in this Section 32.8, until all Shared Collateral Secured Obligations (other than the SVB Obligations GMAC Shared Collateral Debt) have been paid in full in cash and satisfied and all financing commitments under the SVB Agreements relating thereto have expired or been terminated, GMAC shall not assert, or make any request or demand upon the Collateral Agent will not to assert, without the written consent of SVBthe Administrative Agent, any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder Shared Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder GMAC as a creditor and/or equity holder or affiliate of the Company or such Guaranteeing Subsidiary, as the case may beCompany, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Shared Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent GMAC agrees that if a Bankruptcy Event occurs, (i) SVB the Administrative Agent and the Majority Banks (and the Collateral Agent on their behalf) may consent to the use of cash collateral (excluding the Credit Balance Account) on such terms and conditions and in such amounts as it shall they, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders GMAC as holders holder of an interest in the Noteholder Shared Collateral; (ii) SVB any of the Banks may provide postpetition financing for the Company or any Guaranteeing Subsidiary and its Subsidiaries, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall the Banks, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders GMAC as holders holder of an interest in the Noteholder Collateral, Shared Collateral and neither the Collateral Agent nor the Noteholders GMAC shall not oppose such financing; , (iii) neither the Collateral Agent nor the Noteholders GMAC shall not oppose the Company's or its Subsidiaries' use of cash collateral (excluding the Credit Balance Account) on the basis that their interest in the Noteholder Shared Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB the Administrative Agent and the Banks in good faiththeir sole discretion; and (iv) neither the Collateral Agent nor the Noteholders GMAC shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Shared Collateral free and clear of security interests and interests, liens or other claims of any party, including the NoteholdersGMAC, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders GMAC in the Noteholder Shared Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB the Administrative Agent with the consent of the Majority Banks has consented in good faith to such sale or disposition of such assets. The Administrative Agent, the Collateral Agent and GMAC each agree that they will not initiate, propose or consent to action by a bankruptcy court to require or permit the Collateral Agent to act in a manner inconsistent with the ratable administration of the Shared Collateral as contemplated by Section 2.5 or the pari passu distribution of proceeds required by Section 2.4 hereof.
(d) The Collateral Agent GMAC agrees that it will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB the Administrative Agent and the Banks with respect to the SVB CollateralShared Collateral or otherwise, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Shared Collateral Secured Obligations, or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary its Subsidiaries may hold with respect to SVB the Administrative Agent and the Banks or any of the SVB ObligationsShared Collateral Secured Obligations other than the GMAC Shared Collateral Debt, if any.
(e) The Administrative Agent, for itself and on behalf of the lenders under the Bank Credit Agreement, agrees that they will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of this Agreement, (ii) challenging the validity, enforceability or unavoidability of any claim of GMAC with respect to the Shared Collateral and/or the Credit Balance Account or otherwise, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the Shared Collateral Secured Obligations and/or the Credit Balance Account, or (iv) asserting any claims which the Company or its Subsidiaries may hold with respect to GMAC or any of the Shared Collateral Secured Obligations and/or the Credit Balance Account other than the Bank Debt, if any.
(f) To the extent that SVB the Collateral Agent, the Administrative Agent, any Bank or GMAC receives payments or transfers on the SVB Obligations Bank Debt or the GMAC Shared Collateral Debt or proceeds of the SVB Shared Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsBank Debt or the GMAC Shared Collateral Debt, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBthe Collateral Agent, the Administrative Agent, such Bank or GMAC.
(fg) Notwithstanding any other provision of this Section 3Section, the Collateral Agent and each Noteholder GMAC shall be entitled to file a claim in any related bankruptcy proceeding so as to preserve its rights therein (but not in a manner contrary to the foregoing clauses of this Section 2.8) and to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, GMAC including without limitation any claims secured by the Noteholder Shared Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateralif any.
Appears in 1 contract
Samples: Revolving Credit Agreement (Hughes Electronics Corp)
Intercreditor Arrangements in Bankruptcy. (ai) This Subordination Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity Debtor as debtor in possession and to any trustee in bankruptcy for the estate of such entityDebtor.
(bii) Except as otherwise specifically permitted in Section 6(F) or this Section 36(G), until the SVB Obligations have been of Debtor to Fund and the Senior Lenders are indefeasibly paid and satisfied in full and all financing commitments under the SVB Agreements have expired or been terminatedin cash, the Collateral Agent will Junior Creditor shall not assert, without the written consent of SVBFund, any claim, motion objection, or objection argument in respect of any of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim insolvency or assertion that SVB has acted in bad faith or in violation of law) liquidation proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event insolvency or liquidation proceeding by the Collateral Agent or a Noteholder Junior Creditor as a secured creditor of the Company or such Guaranteeing SubsidiaryDebtor, as the case may beincluding, including without limitation limitation, any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(ciii) Without limiting the generality of the foregoing, the Collateral Agent Junior Creditor agrees that that, if a Bankruptcy Event an insolvency or liquidation proceeding occurs, (i1) SVB Fund may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall Fund and Senior Lenders, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an a subordinate interest in the Noteholder Collateral; (ii2) SVB may the Senior Lenders may, upon notice to Junior Creditor, (A) provide financing to Debtor, or (B) consent to the granting of a priming lien to secure postpetition financing for the Company or any Guaranteeing Subsidiary financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall Fund and the Senior Lenders, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii3) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose the CompanyDebtor's use of cash collateral on the basis that their Junior Creditor's interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code on the basis that the interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB with respect to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.Fund;
Appears in 1 contract
Samples: Intercreditor and Debt Subordination Agreement (HG Holdings, Inc.)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Borrower shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate estate(s) of such entity.
(b) Except as otherwise specifically permitted in this Section 3, until In the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedcontext of any Bankruptcy Event, the Senior Collateral Agent will not assertTrustee, without as it determines in its discretion for the written consent benefit of SVBor upon the direction of the Senior Lenders, may file or make (or refuse to file or make) any claimmotion, motion proceeding, objection, claim or objection argument in respect of the SVB Collateral or the Noteholder interests of the Senior Lenders therein, without seeking the prior consent or support from the Second Lien Administrative Agent or any Second Lien Lender, and whether or not any such action (or inaction) by the Senior Collateral in connection Trustee adversely affects or conflicts with any Bankruptcy Event (other than a claim interests of the Second Lien Administrative Agent or assertion that SVB has acted the Second Lien Lenders in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the case may be, including without limitation any claim, motion or objection seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateralotherwise.
(c) Without limiting the generality of the foregoing, the Collateral Second Lien Administrative Agent and each Second Lien Lender agrees that if a Bankruptcy Event occurs, (i) SVB the Senior Collateral Trustee and the Senior Lenders may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall they, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Second Lien Administrative Agent or the Noteholders any Second Lien Lender as holders holder of an interest in the Noteholder CollateralCollateral (subject, however, to the reservation of rights set forth in Section 2.4(g)); (ii) SVB may provide postpetition financing for the Company Senior Lenders (or any Guaranteeing Subsidiary of them) may (A) provide post-petition financing to the Borrower or (B) consent to the granting of a priming lien to secure post-petition financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall such Senior Lenders, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Second Lien Administrative Agent or the Noteholders Second Lien Lenders as holders holder of an interest in the Noteholder CollateralCollateral (subject, and neither however, to the Collateral Agent nor the Noteholders shall oppose such financingreservation of rights set forth in Section 2.4(g)); (iii) neither the Second Lien Collateral Agent nor Trustee and/or the Noteholders Second Lien Lenders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and interests, liens or other claims of any party, including the NoteholdersSecond Lien Administrative Agent and the Second Lien Lenders, under Section 363 363(b) of the Bankruptcy Code on if (A) the basis that the interest of the Noteholders in the Noteholder Senior Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB Trustee has consented in good faith to such sale or disposition of such assets.
assets and (dB) The Collateral Agent agrees that it will not initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability respective interests of the SVB Agreements or Senior Collateral Trustee and the SVB Subsidiary AgreementsSenior Lenders, (ii) challenging on the validityone hand, enforceability or unavoidability of any claim of SVB with respect and the Second Lien Administrative Agent and the Second Lien Lenders, on the other hand, attach to the SVB Collateral, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of such disposition, or alternatively such proceeds are paid to the SVB Senior Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, thenTrustee for the benefit of the Senior Lenders first, to reduce the extent of such payment or proceeds receivedFirst Lien Indebtedness, and then the SVB Obligationssurplus, or part thereofif any, intended is delivered to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent and each Noteholder shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateral.Second Lien Administrative Agent;
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Westpoint Stevens Inc)
Intercreditor Arrangements in Bankruptcy. (a) This If any Credit Party shall be subject to any Bankruptcy Event, this Agreement shall nevertheless remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Codeterms, and all references herein to the Company or any Guaranteeing Subsidiary Credit Party shall be deemed to apply to such entity as debtor in a debtor-in-possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted If in this Section 3, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminated, the Collateral Agent will not assert, without the written consent context of SVB, any claim, motion or objection in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the case may be, including without limitation any claim, motion or objection seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent agrees that if a Bankruptcy Event occursfor any Credit Party, (i) SVB may the Senior Agent or the Required Senior Lenders, as holders of a lien in the Collateral, shall consent to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent pursuant to Section 363 of the Collateral Bankruptcy Code or other applicable law, then the Trustee, on behalf of itself and the Senior Noteholders, shall not raise any motion against or objection to such use and shall not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 2.4(f)). If such cash collateral is used for the Payment in Full of the First Lien Indebtedness, nothing in this Agreement shall prohibit the Trustee, on behalf of itself and the Senior Noteholders, from seeking adequate protection other than as set forth in this Section 2.4(b) in connection with the use of cash collateral.
(c) If in the context of a Bankruptcy Event for any Credit Party, the Senior Agent or the Noteholders Required Senior Lenders, as holders of an interest a lien in the Noteholder Collateral; (ii) SVB may provide postpetition , shall consent to the Credit Parties' incurrence of post-petition financing for the Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law ("DIP Financing"), then the Trustee, on behalf of itself and on the Senior Noteholders, shall not raise any motion against or objection to such terms use and conditions and shall not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 2.4(f)) and, to the extent the liens securing the First Lien Indebtedness are primed by or pari passu with the liens securing such amounts as it DIP Financing, shall consent to the priming of its liens in good faith determine without seeking or obtaining the consent of the Collateral by such DIP Financing (and all obligations relating thereto). The Trustee on behalf of itself and each Senior Noteholder agrees that the Senior Agent and the Senior Lenders (or any subgroup thereof) may provide the DIP Financing contemplated by this Section 2.4(c).
(d) If in the context of a Bankruptcy Event for any Credit Party, the Senior Agent or the Noteholders Required Senior Lenders, as holders of an interest a lien in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the Company's use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use consent to the extent such use has been approved by SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders shall oppose any sale or other disposition of any assets comprising part of the Noteholder constituting Collateral free and clear of security interests and interests, liens or other claims on such Collateral (including any liens of any partythe Senior Agent, including the Senior Lenders, the Trustee and the Senior Noteholders, under ) pursuant to Section 363 of the Bankruptcy Code or other applicable law, the Trustee, for itself or for the benefit of the Senior Noteholders, shall not raise any motion against or objection to such sale and the Trustee, for itself or on behalf of any such Senior Noteholder, promptly shall execute and deliver to the Senior Agent or the applicable Credit Party such termination statements, releases and other documents as the Credit Party may request to effectively confirm such release; provided that the respective interests of the Senior Agent and the Senior Lenders, on the basis that one hand, and the interest Senior Noteholders, on the other hand, attach to the proceeds of such disposition, or alternatively such proceeds are paid first, to the Senior Agent for the benefit of the Senior Lenders to reduce the First Lien Indebtedness, and then, to the extent of any surplus, to the Trustee, for itself or on behalf of any such Senior Noteholder, for application to the Second Lien Indebtedness.
(e) Until the First Lien Indebtedness has been Paid in Full, the Trustee, on behalf of itself and the Senior Noteholders, agrees that, unless otherwise permitted by this Agreement, none of them shall make any motion, claim, objection or argument in respect of the Collateral or seek relief from the automatic stay or any other stay in any Bankruptcy Event in respect of the Collateral, without the prior written consent of the Senior Agent, unless the Senior Agent has taken such action and the actions of the Trustee are otherwise consistent with this Agreement and the actions of the Senior Agent.
(f) The Trustee, on behalf of itself and the Senior Noteholders, agrees that none of them shall contest (or support any other Person contesting)
(i) any request by the Senior Agent or the Senior Lenders for adequate protection or (ii) any objection by the Senior Agent or the Senior Lenders to any motion, relief, action or proceeding based on the Senior Agent or the Senior Lenders claiming a lack of adequate protection. Notwithstanding the foregoing terms of this Section 2.4(f), in any Bankruptcy Event, (i) if the Senior Agent or the Senior Lenders (or any subset thereof) are granted adequate protection in the form of additional collateral (the "Additional Collateral") or administrative priority claims in connection with any DIP Financing or the use of its cash collateral under section 363 or section 364 of the Bankruptcy Code or other applicable law, then the Trustee, on behalf of itself or any of the Senior Noteholders, may seek or request adequate protection in the form of a replacement lien on, and administrative priority claims in connection with, the Additional Collateral, which lien and administrative priority claims are junior in priority to the liens and administrative priority claims securing the First Lien Indebtedness and, to the extent applicable, such DIP Financing (and all obligations relating thereto) to the same extent as the other liens and administrative priority claims securing the Second Lien Indebtedness are so junior in priority to the liens and administrative priority claims securing the First Lien Indebtedness under this Agreement. Any replacement liens and administrative priority claims obtained by the Senior Agent, the Senior Lenders, the Trustee or the Senior Noteholders in the Noteholder Collateral context of a Bankruptcy Event shall be subject to the terms of this Agreement. If any DIP Financing is impaired by used for the Payment in Full of the First Lien Indebtedness (whether provided pursuant to the last sentence of Section 2.4(c) or otherwise), nothing in this Agreement shall prohibit the Trustee, on behalf of itself and the Senior Noteholders, from seeking adequate protection other than as set forth in this Section 2.4(f) in connection with such sale or inadequately protected as a result of such sale if SVB has consented in good faith to such sale or disposition of such assetsDIP Financing.
(dg) Nothing contained herein shall prohibit or in any way limit the Senior Agent or any Senior Lender from objecting in any Bankruptcy Event or otherwise to any action taken by the Trustee or any of the Senior Noteholders, to the extent such action is inconsistent with the terms of this Agreement, including, without limitation, the seeking by the Trustee or any Senior Noteholder of adequate protection or the asserting by the Trustee or any Senior Noteholder of any of its rights and remedies under the Noteholder Documents or otherwise.
(h) The Collateral Agent Trustee on behalf of itself and each Senior Noteholder agrees that it neither the Trustee nor any Senior Noteholder will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, enforceability or unavoidability of any claim in respect of SVB with respect to the SVB CollateralFirst Lien Indebtedness, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral First Priority Liens or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary Credit Parties may hold with respect to SVB the Senior Agent or the SVB ObligationsSenior Lenders or the First Lien Indebtedness, if any. The Senior Agent, for itself and on behalf of the Senior Lenders, agrees that it will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of this Agreement, (ii) challenging the validity, enforceability or unavoidability of any claim in respect of the Second Lien Indebtedness, (iii) challenging the perfection, enforceability or unavoidability of any Second Priority Liens or (iv) asserting any claims which the Credit Parties may hold with respect to the Senior Noteholders or the Second Lien Indebtedness, if any. For the avoidance of doubt, the terms of this paragraph shall apply whether or not a Bankruptcy Event has occurred and such terms shall survive the termination of this Agreement.
(ei) To the extent that SVB receives payments or transfers on the SVB Obligations or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy or other applicable law, then, to the extent of such payment or proceeds received, the SVB Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the Collateral Agent The Trustee and each Senior Noteholder shall be entitled (A) to file any proofs of claim and all necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersTrustee or any Senior Noteholder, including including, without limitation limitation, any claims secured by the Noteholder Collateral; (B) to vote on any plan of reorganization and appear and be heard on any matter in connection therewith to the extent not inconsistent with this Agreement; and (C) to file all pleadings, objections, motions or challenging agreements which assert rights or interests available to unsecured creditors of the perfectionCredit Parties arising under either the Bankruptcy Code or applicable non-bankruptcy law (other than any pleadings, enforceability objections, motions or unavoidability of any liens securing agreements inconsistent with its obligations under Section 2.4(a)-(h)), including, without limitation, motions and other pleadings to terminate the Noteholder Collateral.exclusive periods under 11 U.S.
Appears in 1 contract
Samples: Lien Intercreditor Agreement (Usc May Verpackungen Holding Inc)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Obligor shall be deemed to apply to such entity Person as debtor in possession and to any trustee in bankruptcy for the estate of such entityPerson.
(bi) Except as otherwise specifically permitted in this Section 32.4, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedWxxxx Fargo Repayment, the Collateral Agent will Cree shall not assert, assert without the written consent of SVB, Wxxxx Fargo any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any Wxxxx Fargo Priority Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Agent or a Noteholder Cree as a secured creditor of the Company or such Guaranteeing Subsidiary, as the case may beany Obligor, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of any Wxxxx Fargo Priority Collateral.
(ii) Except as otherwise specifically permitted in this Section 2.4, until the SVB Cree Repayment, Wxxxx Fargo shall not assert without the written consent of Cree any claim, motion, objection, or argument in respect of any Cree Priority Collateral in connection with any Bankruptcy Event which could otherwise be asserted or raised in connection with such Bankruptcy Event by Wxxxx Fargo as a secured creditor of any Obligor, including without limitation any claim, motion, objection or argument seeking adequate protection or relief from the Noteholder automatic stay in respect of any Cree Priority Collateral; provided, however, that Wxxxx Fargo may assert and exercise the use and access rights with respect to the Cree Priority Collateral contemplated by Section 2.3(a).
(c) Without limiting the generality of the foregoing, the Collateral Agent Cree agrees that if a Bankruptcy Event occurs, (i) SVB Wxxxx Fargo may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall Wxxxx Fargo, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder CollateralCree; (ii) SVB Wxxxx Fargo may (A) provide postpetition post-petition financing for to any Obligor or (B) consent to the Company or any Guaranteeing Subsidiary granting of a priming Lien to secure post-petition financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall Wxxxx Fargo, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financingCree; (iii) neither the Collateral Agent nor the Noteholders Cree shall not oppose the Company's any Obligor’s use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use that Wxxxx Fargo has been approved by SVB in good faithconsented thereto; and (iv) neither the Collateral Agent nor the Noteholders Cree shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Wxxxx Fargo Priority Collateral (or the sale or bidding procedures with respect thereto) free and clear of Liens or other claims of any party, including Cree, under Section 363 of the Bankruptcy Code if Wxxxx Fargo has consented to such sale or disposition of such assets. Cree shall not provide or participate in any post-petition financing to any Obligor.
(d) Wxxxx Fargo shall not oppose any sale or other disposition of any assets comprising part of the Cree Priority Collateral free and clear of security interests and liens Liens or other claims of any party, including the NoteholdersWxxxx Fargo, under Section 363 of the Bankruptcy Code on the basis that the Wxxxx Fargo’s interest of the Noteholders in the Noteholder such Cree Priority Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB Cree has consented in good faith to such sale or disposition of such assets; provided, however, that any such sale or other disposition of any of the Cree Priority Collateral shall be subject to Wxxxx Fargo’s use and access rights with respect to the Cree Priority Collateral contemplated by Section 2.3(a).
(de) The Collateral Agent Cree agrees that it will not initiate, prosecute, encourage, or assist with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements this Agreement (whether before, during or the SVB Subsidiary Agreementsafter any Bankruptcy Event), (ii) challenging the validity, validity or enforceability or unavoidability of Wxxxx Fargo’s claim in connection with any claim of SVB with respect to the SVB CollateralBankruptcy Event, (iii) challenging the perfection, perfection or enforceability or unavoidability of any liens securing of Wxxxx Fargo’s Liens on any of the SVB Collateral (subject to the relative priorities and limitations on remedies set forth herein), or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary Obligor may hold with respect to SVB Wxxxx Fargo or the SVB ObligationsWxxxx Fargo Debt, if any.
(ef) Wxxxx Fargo agrees that it will not initiate, prosecute, encourage, or assist with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of this Agreement (whether before, during or after any Bankruptcy Event), (ii) challenging the validity or enforceability of Cree’s claim in connection with any Bankruptcy Event, (iii) challenging the perfection or enforceability of any of Cree’s Liens on any of the Collateral (subject to the relative priorities and limitations on remedies set forth herein), or (iv) asserting any claims which any Obligor may hold with respect to Cree or the Cree Debt, if any.
(i) To the extent that SVB Wxxxx Fargo receives payments or transfers on the SVB Obligations Wxxxx Fargo Debt or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsWxxxx Fargo Debt, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBWxxxx Fargo.
(fii) To the extent that Cree receives payments or transfers on the Cree Debt or proceeds of the Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the Cree Debt, or part thereof, intended to be satisfied shall be revived and continue in full force and effect as if such payments or proceeds had not been received by Cree.
(h) Notwithstanding any other provision of this Section 32.4, the Collateral Agent and each Noteholder (i) Cree shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person Person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersCree, including without limitation any claims secured by the Noteholder Collateral, if any, and (ii) Cree shall be entitled to file any pleadings, objections, motions or challenging agreement which assert rights or interests available to unsecured creditors of the perfectionapplicable Obligor arising under either the Bankruptcy Code or applicable non-bankruptcy law.
(i) Notwithstanding any other provision of this Section 2.4, enforceability (i) Wxxxx Fargo shall be entitled to file any necessary responsive or unavoidability defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of Wxxxx Fargo, including without limitation any liens securing claims secured by the Noteholder Collateral, if any, and (ii) Wxxxx Fargo shall be entitled to file any pleadings, objections, motions or agreement which assert rights or interests available to unsecured creditors of the applicable Obligor arising under either the Bankruptcy Code or applicable non-bankruptcy law.
Appears in 1 contract
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 313.11, until the SVB Obligations holders of Senior Indebtedness have been paid in full and all financing commitments under the SVB Agreements have expired in cash or been terminatedCash Equivalents, the Collateral Agent will not assert, no Junior Creditor shall assert without the written consent of SVB, the holders of Senior Indebtedness any claim, motion motion, objection or objection argument in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) Proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event Proceeding by the Collateral Agent or a Noteholder such Junior Creditor as a secured creditor of the Company or such Guaranteeing Subsidiary, as the case may beCompany, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Agent each Junior Creditor agrees that if a Bankruptcy Event Proceeding occurs, (i) SVB the holders of Senior Indebtedness may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall the holders of Senior Indebtedness, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Lender as holders holder of an interest in the Noteholder Collateral; (ii) SVB the holders of Senior Indebtedness may (A) provide postpetition financing for to the Company or any Guaranteeing Subsidiary (B) consent to the granting of a priming Lien to secure postpetition financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall the holders of Senior Indebtedness, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders any Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders Junior Creditors shall not oppose the Company's use of cash collateral on the basis that their the Lender's interest in the Noteholder 59 66 Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faith; the holders of Senior Indebtedness, and (iv) neither the Collateral Agent nor the Noteholders Junior Creditors shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and interests, liens or other claims of any party, including the Noteholders, Junior Creditors under Section 363 of the Bankruptcy Code on the basis that the Junior Creditors' interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB has the holders of Senior Indebtedness have consented in good faith to such sale or disposition of such assets. For purposes of this Agreement, where the holders of Senior Indebtedness are entitled to act hereunder and there is more than one such holder, they shall act by the consent of holders of the majority of the then outstanding Senior Indebtedness.
(d) The Collateral Agent Each Junior Creditor agrees that it will not initiate, prosecute, encourage or cooperate with any other person to initiate or prosecute any claim, action or other proceeding (whether or not in a Proceeding) (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, validity or enforceability or unavoidability of any claim Liens in favor of SVB with respect to the SVB Collateralany holder of Senior Indebtedness (or any agent, trustee, or other representative thereof), (iii) challenging the perfection, validity or enforceability or unavoidability of any liens securing the SVB Collateral guaranty of Senior Indebtedness, or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary may hold with respect to SVB or the SVB Obligationsholders of Senior Indebtedness, if any.
(e) To the extent that SVB any holder of Senior Indebtedness receives payments or transfers on the SVB Obligations Senior Indebtedness or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsSenior Indebtedness, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBthe Lender.
(f) Notwithstanding any other provision of this Section 3, 13.11(A) the Collateral Agent and each Noteholder Lender shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersLender, including without limitation any claims secured by the Noteholder Collateral, if any, and (B) the Lender shall be entitled to file any pleadings, objections, motions or challenging agreement which assert rights or interests available to unsecured creditors of the perfectionCompany arising under either the Bankruptcy Code or applicable non-bankruptcy law.
(g) In any Proceeding, enforceability the Junior Creditors shall not vote to accept any plan of reorganization of the Company or unavoidability any Subsidiaries if a holder of any liens securing the Noteholder CollateralSenior Indebtedness has objected to such plan.
Appears in 1 contract
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate estate(s) of such entity.
(b) Except as otherwise specifically permitted in this Section 32.5, until the SVB Obligations have First Tier Indebtedness has been paid in full in cash and satisfied and all financing obligations and commitments under the SVB Agreements Senior Credit Documents have expired or been terminated, the Junior Administrative Agent and each Junior Creditor shall not assert, or make any request or demand upon the Collateral Agent will not to assert, without the written consent of SVBthe Senior Administrative Agent, any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Junior Administrative Agent or a Noteholder any Junior Creditor as a creditor and/or equity holder of the Company or such Guaranteeing Subsidiary, as the case may beCompany, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Junior Administrative Agent and each Junior Creditor agrees that if a Bankruptcy Event occurs, (i) SVB the Senior Administrative Agent and the Senior Creditors (and the Collateral Agent on their behalf) may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall they, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Junior Administrative Agent or the Noteholders any Junior Creditor as holders holder of an interest in the Noteholder Collateral; (ii) SVB any of the Senior Creditors may provide postpetition financing for the Company or any Guaranteeing Subsidiary and its Subsidiaries, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall the Senior Creditors, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Junior Administrative Agent or the Noteholders Junior Creditors as holders holder of an interest in the Noteholder Collateral, Collateral and neither the Collateral Junior Administrative Agent nor the Noteholders Junior Creditors shall oppose such financing; (iii) neither the Collateral Junior Administrative Agent nor the Noteholders Junior Creditors shall oppose the Company's or its Subsidiaries' use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB the Senior Administrative Agent or the Senior Creditors in good faiththeir sole discretion; and (iv) neither the Collateral Junior Administrative Agent nor the Noteholders Junior Creditors shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and interests, liens or other claims of any party, including the NoteholdersJunior Administrative Agent and the Junior Creditors, under Section 363 of the Bankruptcy Code on the basis that the interest of either the Noteholders Junior Administrative Agent or the Junior Creditor in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB the Senior Administrative Agent has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Junior Administrative Agent and each Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB the Senior Administrative Agent or the Senior Creditors with respect to the SVB CollateralCollateral or otherwise, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral First Tier Indebtedness, or (iv) asserting any such claims which the Company or any Guaranteeing Subsidiary its Subsidiaries may hold with respect to SVB the Senior Administrative Agent or the SVB ObligationsSenior Creditors or the First Tier Indebtedness, if any.
(e) To the extent that SVB the Senior Administrative Agent or any Senior Creditor receives payments or transfers on the SVB Obligations First Tier Indebtedness or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsFirst Tier Indebtedness, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBthe Senior Administrative Agent or such Senior Creditor.
(f) Notwithstanding any other provision of this Section 3Section, the Collateral Junior Administrative Agent and each Noteholder Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, Junior Administrative Agent or any Junior Creditor including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateralif any.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Loral Space & Communications LTD)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity Debtor as debtor in possession and to any trustee in bankruptcy for the estate of such entityDebtor.
(b) Except as otherwise specifically permitted in this Section 32.4, until the SVB Obligations have been paid in full and all financing commitments under the SVB Agreements have expired or been terminatedSenior Liability Repayment, the Collateral Agent will not assert, without the written consent of SVB, no Junior Creditor shall assert any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder any Collateral in connection with any Bankruptcy Event (other than a claim Insolvency or assertion that SVB has acted in bad faith or in violation of law) Liquidation Proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event Insolvency or Liquidation Proceeding by the Collateral Agent or a Noteholder such Junior Creditor as a secured creditor of the Company or such Guaranteeing Subsidiaryany Debtor, as the case may beincluding, including without limitation limitation, any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, until the Collateral Agent Senior Liability Repayment shall have occurred, each Junior Creditor agrees that if a Bankruptcy Event an Insolvency or Liquidation Proceeding occurs, (i) SVB the Senior Lender may consent or object to the use of cash collateral on such terms and conditions and in such amounts as it shall the Senior Lender, in good faith determine its sole discretion, may decide, without seeking or obtaining the consent of the Collateral Agent or the Noteholders any Junior Creditor as holders holder of an interest in the Noteholder Collateral; (ii) SVB may provide postpetition financing for the Company or such Junior Creditor shall not oppose any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of the Collateral Agent or the Noteholders as holders of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Agent nor the Noteholders shall oppose the CompanyDebtor's use of cash collateral to which the Senior Lender consents on the basis that their any Junior Creditor's interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB the Senior Lender; (iii) the Senior Lender may provide financing to any Debtor pursuant to Section 364 of the Bankruptcy Code or other applicable law (such financing, the "POST-PETITION FINANCING") on such terms and conditions and in good faithsuch amounts as the Senior Lender, in its sole discretion, may decide, without seeking or obtaining the consent of any Junior Creditor as holder of an interest in the Collateral; and (iv) neither the Collateral Agent nor the Noteholders such Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens of any party, including the Noteholders, under Section 363 of the Bankruptcy Code such financing on the basis that the any Junior Creditor's interest of the Noteholders in the Noteholder Collateral is impaired by such sale financing or inadequately protected as a result of by such sale if SVB financing to the extent such financing has consented in good faith to such sale or disposition of such assetsbeen approved by the Senior Lender.
(d) The Collateral Agent Each Junior Creditor and the Senior Lender agrees that it will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, enforceability or unavoidability seniority of the Senior Lender's claims or any claim of SVB with respect to the SVB CollateralJunior Creditor's claim, (iii) challenging the perfection, enforceability or unavoidability seniority of any liens securing Liens of the SVB Collateral Senior Lender or the Junior Agent or any other Junior Creditor, or (iv) asserting any such claims claims, if any, which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB the Senior Lender, the Junior Agent, Junior Creditor, or the SVB ObligationsSenior Liabilities or Junior Liabilities.
(e) To the extent that SVB the Senior Lender receives payments or transfers on the SVB Obligations Senior Liabilities or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsSenior Liabilities, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBthe Senior Lender.
(f) Notwithstanding any other provision of this Section 32.4, the Collateral Agent and each Noteholder Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholderssuch Junior Creditor, including including, without limitation limitation, any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateralif any.
Appears in 1 contract
Samples: Intercreditor, Subordination and Turnover Agreement (Miller Industries Inc /Tn/)
Intercreditor Arrangements in Bankruptcy. (ai) This Subordination Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity Debtor as debtor in possession and to any trustee in bankruptcy for the estate of such entityDebtor.
(bii) Except as otherwise specifically permitted in Section 6(E) or this Section 36(F), until the SVB Obligations have been of Debtor to NMC are indefeasibly paid and satisfied in full and all financing commitments under the SVB Agreements have expired or been terminatedfull, the Collateral Agent will Junior Creditor shall not assert, without the written consent of SVBNMC, any claim, motion objection, or objection argument in respect of any of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim insolvency or assertion that SVB has acted in bad faith or in violation of law) liquidation proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event insolvency or liquidation proceeding by the Collateral Agent or a Noteholder Junior Creditor as a secured creditor of the Company or such Guaranteeing SubsidiaryDebtor, as the case may beincluding, including without limitation limitation, any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(ciii) Without limiting the generality of the foregoing, the Collateral Agent Junior Creditor agrees that that, if a Bankruptcy Event an insolvency or liquidation proceeding occurs, (i1) SVB NMC may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall NMC, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an a subordinate interest in the Noteholder Collateral; (ii2) SVB may Lender may, upon notice to Junior Creditor, (A) provide financing to Debtor, or (B) consent to the granting of a priming lien to secure postpetition financing for the Company or any Guaranteeing Subsidiary financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall NMC, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii3) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose the CompanyDebtor's use of cash collateral on the basis that their Junior Creditor's interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faithNMC; and (iv4) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens or other claims of any party, including the NoteholdersJunior Creditor, under Section 363 of the Bankruptcy Code on the basis that the Junior Creditor's interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB NMC has consented in good faith to such sale or disposition of such assets; and (5) Junior Creditor shall not vote in favor of, nor sponsor or support any plan of reorganization of Debtor, that does not propose to pay the Senior Indebtedness in full on the effective date of such plan or that is not consistent with this Subordination Agreement, absent NMC's consent to a plan that does not pay in full the Senior Indebtedness on the effective date of such plan.
(div) The Collateral Agent Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (i1) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Subordination Agreement, (ii2) challenging the validity, validity or enforceability or unavoidability of any claim of SVB with respect to the SVB CollateralNMC's claim, (iii3) challenging the perfection, perfection or enforceability or unavoidability of any liens securing the SVB Collateral of NMC, or (iv4) asserting any such claims claims, if any, which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB NMC or any of the SVB Obligations.Obligations of Debtor to NMC. Xxxxxxxxx Xxxxx LLC - Intercreditor and Debt Subordination Agreement
(ev) To the extent that SVB NMC receives payments or transfers on the SVB Obligations of Debtor to NMC or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or of any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsObligations of Debtor to NMC, or part thereof, intended to be satisfied shall be revived and continue continued in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBNMC.
(fvi) Notwithstanding any other provision Subject to the provisions of this Section 36(F) above, the Collateral Agent and each Noteholder (1) Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersJunior Creditor, including including, without limitation limitation, any claims secured by the Noteholder Collateral, if any, and (2) Junior Creditor shall be entitled to file any pleadings, objections, motions or subordination agreements which assert rights or interests available to unsecured creditors of Debtor arising under either the Bankruptcy Code or applicable non-bankruptcy law.
(vii) NMC agrees that NMC will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (1) challenging the perfectionvalidity of enforceability of this Subordination Agreement, (2) challenging the validity or enforceability or unavoidability of Junior Creditor's claims, (3) challenging the perfection of enforceability of any liens securing of Junior Creditor, or (4) asserting any claims, if any, which Debtor may hold with respect to Junior Creditor or any of the Noteholder CollateralObligations of Debtor to Junior Creditor.
Appears in 1 contract
Samples: Intercreditor and Debt Subordination Agreement (Stanley Furniture Co Inc.)
Intercreditor Arrangements in Bankruptcy. (a) This Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Pledgor shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy for the estate estate(s) of such entity.
(b) Except as otherwise specifically permitted in this Section 32.5, until the SVB Obligations have First Tier Indebtedness has been paid in full in cash and satisfied and all financing obligations and commitments under the SVB Agreements Senior Credit Documents have expired or been terminated, the Junior Administrative Agent and each Junior Creditor shall not assert, or make any request or demand upon the Collateral Agent will not to assert, without the written consent of SVBthe Senior Administrative Agent, any claim, motion motion, objection, or objection argument in respect of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim or assertion that SVB has acted in bad faith or in violation of law) which could otherwise be asserted or raised in connection with such Bankruptcy Event by the Collateral Junior Administrative Agent or a Noteholder any Junior Creditor as a creditor of the Company Pledgor or such Guaranteeing Subsidiary, as the case may beequity holder of Satellite, including without limitation any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(c) Without limiting the generality of the foregoing, the Collateral Junior Administrative Agent and each Junior Creditor agrees that if a Bankruptcy Event occurs, (i) SVB the Senior Administrative Agent and the Senior Creditors (and the Collateral Agent on their behalf) may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall they, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Junior Administrative Agent or the Noteholders any Junior Creditor as holders holder of an interest in the Noteholder Collateral; (ii) SVB any of the Senior Creditors may provide postpetition financing for the Company or any Guaranteeing Subsidiary Pledgor and its Subsidiaries, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall the Senior Creditors, in good faith determine their sole discretion, may decide without seeking or obtaining the consent of the Collateral Junior Administrative Agent or the Noteholders Junior Creditors as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii) neither the Collateral Junior Administrative Agent nor the Noteholders Junior Creditors shall oppose the CompanyPledgor's or its Subsidiaries' use of cash collateral on the basis that their interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB the Senior Administrative Agent or the Senior Creditors in good faiththeir sole discretion; and (iv) neither the Collateral Junior Administrative Agent nor the Noteholders Junior Creditors shall oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and interests, liens or other claims of any party, including the NoteholdersJunior Administrative Agent and the Junior Creditors, under Section 363 of the Bankruptcy Code on the basis that the interest of either the Noteholders Junior Administrative Agent or the Junior Creditor in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB the Senior Administrative Agent has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Junior Administrative Agent and each Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other person to initiate or prosecute any claim, action or other proceeding (i) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Agreement, (ii) challenging the validity, enforceability or unavoidability of any claim of SVB the Senior Administrative Agent or the Senior Creditors with respect to the SVB CollateralCollateral or otherwise, (iii) challenging the perfection, enforceability or unavoidability of any liens securing the SVB Collateral First Tier Indebtedness, or (iv) asserting any such claims which the Company Pledgor or any Guaranteeing Subsidiary its Subsidiaries may hold with respect to SVB the Senior Administrative Agent or the SVB ObligationsSenior Creditors or the First Tier Indebtedness, if any.
(e) To the extent that SVB the Senior Administrative Agent or any Senior Creditor receives payments or transfers on the SVB Obligations First Tier Indebtedness or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsFirst Tier Indebtedness, or part thereof, intended to be satisfied shall be revived and continue in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBthe Senior Administrative Agent or such Senior Creditor.
(f) Notwithstanding any other provision of this Section 3Section, the Collateral Junior Administrative Agent and each Noteholder Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Noteholders, Junior Administrative Agent or any Junior Creditor including without limitation any claims secured by the Noteholder Collateral, or challenging the perfection, enforceability or unavoidability of any liens securing the Noteholder Collateralif any.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Loral Space & Communications LTD)
Intercreditor Arrangements in Bankruptcy. (ai) This Subordination Agreement shall remain in full force and effect and enforceable pursuant to its terms in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to the Company or any Guaranteeing Subsidiary Debtor shall be deemed to apply to such entity Debtor as debtor in possession and to any trustee in bankruptcy for the estate of such entityDebtor.
(bii) Except as otherwise specifically permitted in Section 6(E) or this Section 36(F), until the SVB Obligations have been of Debtor to NMC are indefeasibly paid and satisfied in full and all financing commitments under the SVB Agreements have expired or been terminatedfull, the Collateral Agent will Junior Creditor shall not assert, without the written consent of SVBNMC, any claim, motion objection, or objection argument in respect of any of the SVB Collateral or the Noteholder Collateral in connection with any Bankruptcy Event (other than a claim insolvency or assertion that SVB has acted in bad faith or in violation of law) liquidation proceeding which could otherwise be asserted or raised in connection with such Bankruptcy Event insolvency or liquidation proceeding by the Collateral Agent or a Noteholder Junior Creditor as a secured creditor of the Company or such Guaranteeing SubsidiaryDebtor, as the case may beincluding, including without limitation limitation, any claim, motion motion, objection or objection argument seeking or opposing adequate protection or relief from the automatic stay in respect of the SVB Collateral or the Noteholder Collateral.
(ciii) Without limiting the generality of the foregoing, the Collateral Agent Junior Creditor agrees that that, if a Bankruptcy Event an insolvency or liquidation proceeding occurs, (i1) SVB NMC may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall NMC, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an a subordinate interest in the Noteholder Collateral; (ii2) SVB may Lender may, upon notice to Junior Creditor, (A) provide financing to Debtor, or (B) consent to the granting of a priming lien to secure postpetition financing for the Company or any Guaranteeing Subsidiary financing, in each case pursuant to Section 364 of the Bankruptcy Code or other applicable law and on such terms and conditions and in such amounts as it shall NMC, in good faith determine its sole discretion, may decide without seeking or obtaining the consent of the Collateral Agent or the Noteholders Junior Creditor as holders holder of an interest in the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders shall oppose such financing; (iii3) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose the CompanyDebtor's use of cash collateral on the basis that their Junior Creditor's interest in the Noteholder Collateral is impaired by such use or inadequately protected by such use to the extent such use has been approved by SVB in good faithNMC; and (iv4) neither the Collateral Agent nor the Noteholders Junior Creditor shall not oppose any sale or other disposition of any assets comprising part of the Noteholder Collateral free and clear of security interests and liens or other claims of any party, including the NoteholdersJunior Creditor, under Section 363 of the Bankruptcy Code on the basis that the Junior Creditor's interest of the Noteholders in the Noteholder Collateral is impaired by such sale or inadequately protected as a result of such sale if SVB NMC has consented in good faith to such sale or disposition of such assets; and (5) Junior Creditor shall not vote in favor of, nor sponsor or support any plan of reorganization of Debtor, that does not propose to pay the Senior Indebtedness in full on the effective date of such plan or that is not consistent with this Subordination Agreement, absent NMC's consent to a plan that does not pay in full the Senior Indebtedness on the effective date of such plan.
(div) The Collateral Agent Junior Creditor agrees that it will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (i1) challenging the validity or enforceability of the SVB Agreements or the SVB Subsidiary Agreementsthis Subordination Agreement, (ii2) challenging the validity, validity or enforceability or unavoidability of any claim of SVB with respect to the SVB CollateralNMC's claim, (iii3) challenging the perfection, perfection or enforceability or unavoidability of any liens securing the SVB Collateral of NMC, or (iv4) asserting any such claims claims, if any, which the Company or any Guaranteeing Subsidiary Debtor may hold with respect to SVB NMC or any of the SVB ObligationsObligations of Debtor to NMC.
(ev) To the extent that SVB NMC receives payments or transfers on the SVB Obligations of Debtor to NMC or proceeds of the SVB Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or of any other party under any bankruptcy law, state or other applicable federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the SVB ObligationsObligations of Debtor to NMC, or part thereof, intended to be satisfied shall be revived and continue continued in full force and effect enjoying all rights and benefits of this Agreement as if such payments or proceeds had not been received by SVBNMC.
(fvi) Notwithstanding any other provision Subject to the provisions of this Section 36(F) above, the Collateral Agent and each Noteholder (1) Junior Creditor shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the NoteholdersJunior Creditor, including including, without limitation limitation, any claims secured by the Noteholder Collateral, if any, and (2) Junior Creditor shall be entitled to file any pleadings, objections, motions or subordination agreements which assert rights or interests available to unsecured creditors of Debtor arising under either the Bankruptcy Code or applicable non-bankruptcy law.
(vii) NMC agrees that NMC will not initiate, prosecute, encourage, or assist with any other person or entity to initiate or prosecute any claim, action or other proceeding (1) challenging the perfectionvalidity of enforceability of this Subordination Agreement, (2) challenging the validity or enforceability or unavoidability of Junior Creditor's claims, (3) challenging the perfection of enforceability of any liens securing of Junior Creditor, or (4) asserting any claims, if any, which Debtor may hold with respect to Junior Creditor or any of the Noteholder CollateralObligations of Debtor to Junior Creditor.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stanley Furniture Co Inc.)
