Post-Petition Financing. (a) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Term Loan Lenders or one of their affiliates with the consent of the Term Loan Agent, each Revolving Loan Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a Lien on the Revolving Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Revolving Loan Creditors are permitted to seek (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Term Loan Obligations does not exceed the Maximum Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor. (b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof. (c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor. (d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
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Samples: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Post-Petition Financing. (a) If any Obligor or Obligors shall become subject to a case or proceeding under the Bankruptcy Insolvency Code or any similar Insolvency Law and such Obligor or Obligors if, as debtor(s)-ina debtor-in-possession (or a trustee appointed on behalf of otherwise, such Obligor or Obligors) shall move Credit Party moves for approval of DIP Financing (i) financing to be provided by one the ABL Agent or more any ABL Lender or any other Person with the written consent of the ABL Agent under Section 364 of the Bankruptcy Code (“DIP Financing”) or (ii) the use of cash collateral derived from Collateral with the consent of the ABL Agent under Section 363 of the Bankruptcy Code or any similar Insolvency Law, the Term Agent and the Term Loan Lenders agree: (x) not to object to any use of cash-collateral derived from Collateral or any such financing (nor support any other Person objecting to such use of cash collateral derived from Collateral or such financing), on the grounds of the Term Loan Lenders failing to receive any form of requested “adequate protection” (or one of their affiliates with the consent of the Term Loan Agent, each Revolving Loan Creditor agrees that no Revolving Loan Creditor shall contest or oppose in comparable relief under any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)applicable Insolvency Law) or other relief in connection with such use of cash collateral and shall be deemed to have waived any objections to such financing derived from the Collateral or such use financing, and (y) so long as the Liens securing the ABL Priority Obligations are subordinated to or pari passu with the Liens securing such debtor-in-possession financing, to subordinate its Liens on the Collateral to the same extent as set forth herein (A) to any adequate protection liens or comparable liens under any Insolvency Law provided to the ABL Agent on behalf of cash collateral as the ABL Lenders, (B) to any carve-out amount for professionals and/or the trustee or other court officers in the applicable Insolvency Proceeding that has been agreed upon by the ABL Agent and (C) to the Liens on Collateral securing such debtor-in-possession financing and all obligations relating thereto and so long as (i1) the Term Agent receives a replacement lien on the same Collateral as the Collateral of the ABL Agent (on a basis junior to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms ABL Agent) and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a retains its Lien on the Revolving Loan pre-petition Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceedingproceeding) with the same relative priority as provided for existed prior to the commencement of the case or proceeding under this Agreementapplicable Bankruptcy Laws, (iii2) the Revolving Loan Creditors are permitted to seek sum of (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (ivx) the aggregate principal amount of such DIP Financing (including loans and letters of credit issued or arranged outstanding under such facility)post-petition or post-filing financing, assuming plus (y) the full funding of loans and commitments for such DIP Financing, together with the then-outstanding aggregate principal amount of the Term Loan Obligations pre-petition or pre-filing loans and letters of credit included in the ABL Priority Obligations, in the aggregate, does not exceed the Maximum Principal Amount ABL Cap, (3) the sum of Term Loan Debt(x) the post-petition or post-filing bank product obligations under such post-petition or post-filing financing plus (y) the Bank Product Obligations shall not exceed the Bank Product Cap, unless (4) the Revolving Loan Agent provides prior written consent to interest rate, fees and other material terms of the contrarypost-petition or post-filing financing are commercially reasonably under the circumstances, and (v5) the post-petition financing will not require the Obligors to seek confirmation of a specific plan of reorganization or arrangement for which all or substantially all of the material terms are set forth in the documentation evidencing such post-petition financing (but for the avoidance of doubt, such post-petition financing may include deadlines for the confirmation of a plan of reorganization or arrangement satisfactory to the post-petition lenders or may require that the DIP Financing be paid in full in cash upon the consummation of a plan of reorganization or use sale of all or substantially all of the assets of the Obligors outside the ordinary course of business). Subject to clause (5) above, the foregoing provisions of this Section 6.3(a) shall not prevent the Term Agent and the Term Loan Claimholders from objecting to any provision in any such post-petition financing relating to any provision or consent of a plan or reorganization arrangement, proposal of other plan of similar effect under any Insolvency Laws.
(b) The Term Agent, on behalf of itself and the Term Loan Lenders, agrees that neither it nor they will raise any objection to or oppose a sale or other disposition of any Collateral (and any post-petition or post-filing assets subject to, adequate protection liens or comparable liens under Insolvency Law in favor of the ABL Agent, free and clear of its Liens or other claims under Section 363 of the Bankruptcy Code or other similar Insolvency Law if the ABL Agent has consented to such sale or disposition of such assets so long as (i) the net cash collateral is proceeds of such sale or other disposition are applied pursuant to Section 4.1, or (ii) the interests of the Term Loan Lenders in the Collateral (and any post-petition or post-filing assets subject to adequate protection liens or comparable liens under Insolvency Law, if any, in favor of the Term Agent) attach to the proceeds thereof, subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall notIf requested by the ABL Agent in connection therewith, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented affirmatively consent to such DIP Financing. To the extent any DIP Financing proposed by one a sale or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereofdisposition.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving The Term Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens behalf of the Term Loan Lenders, agrees that that they shall not offer, and shall not permit any Affiliate of any of them to offer, to provide any DIP Financing to the Obligors in any Insolvency Proceeding or endorse the provision of any DIP Financing to the Obligors in any Insolvency Proceeding in competition with any financing provided by or consented to by ABL Lenders (x) other than a Junior DIP Financing or (y) so long as the ABL Agent on or any ABL Lender (or other ABL Claimholder) shall have provided a commitment letter for a DIP Financing to the Term Loan Priority Collateral in a manner consistent Obligors which complies with the terms and provisions conditions of this Agreement, Section 6.3(a) (iian “ABL DIP Financing Proposal”) in response to an initial written request from the Term Loan Creditors retain Obligors for a Lien on the Term Loan Collateral DIP Financing within ten (including proceeds thereof arising after the commencement 10) Business Days from receipt of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted to seek (without objection written request from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with Obligors. In the same relative priority as provided for under this Agreement and adequate protection in event that no ABL Claimholder provides an ABL DIP Financing Proposal to the form of cash payments of interest, fees and expenses (provided that Obligors within the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth time period described in this Section 8.2(a)), clause (ivc) the aggregate principal amount of such above or provides a proposal for DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors that does not comply with this the terms and conditions of Section 8.2(c)6.3(a) above, any Term Loan Claimholder, or any Affiliate thereof, may offer to provide a DIP Financing to the Obligors in such Insolvency Proceeding so long as such DIP Financing provides for, and results in, the Term Loan Creditors may object to Discharge of ABL Priority Obligations upon the initial funding of such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorDIP Financing.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
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Post-Petition Financing. (a) If any Obligor or Obligors Loan Party shall become subject to a case under the Bankruptcy Code or any similar Bankruptcy Law and such Obligor or Obligors if, as debtor(s)-ina debtor-in-possession (or a trustee appointed on behalf of otherwise, such Obligor or Obligors) shall move Loan Party moves for approval of DIP Financing (i) financing to be provided in good faith by one Revolving Credit Agent or more any Revolving Credit Lender or any other Person with the written consent of the Term Loan Lenders Revolving Credit Agent under Section 364 of the Bankruptcy Code or one any similar Bankruptcy Law or (ii) the use of their affiliates cash collateral derived from Collateral with the consent of the Term Loan AgentRevolving Credit Agent under Section 363 of the Bankruptcy Code or any similar Bankruptcy Law, each Revolving Loan Creditor agrees that no Revolving Loan Creditor shall contest Second Priority Secured Party agrees: (x) not to object to any use of cash collateral derived from Collateral or oppose in any manner such DIP Financing financing (except nor support any other Person objecting to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed derived from Collateral or such financing), (y) not to have waived demand any objections to such financing form of “adequate protection” or any other relief in connection with such use of cash collateral derived from Collateral or such financing, except as long as provided in Section 5.2(a) and (iz) that, without any further action by, or consent of, any Second Priority Agent or Second Priority Secured Party, the Second Priority Liens on the Collateral may be made subordinate (A) to any adequate protection liens provided to the Revolving Credit Agent on behalf of the Revolving Credit Secured Parties, (B) to any carve-out amount from the Collateral (including all fees accrued and unpaid and thereafter arising) following the occurrence of any event of default under any such debtor in possession financing, that has been agreed upon by the Revolving Credit Agent, and (C) to the extent such DIP Financing is secured by Liens on Collateral securing such debtor in possession financing and all obligations relating thereto so long as Second Priority Designated Agent receives an Second Priority Replacement Lien on Collateral on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate same terms (but on a basis junior to the Liens of the Revolving Loan Credit Agent securing the Revolving Credit Claims, the Liens securing such debtor in possession financing, any carve-out amount from the Collateral and any adequate protection liens provided to the Revolving Credit Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a Lien on the Revolving Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Revolving Loan Creditors are permitted to seek (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability behalf of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth Credit Secured Parties). Neither Second Priority Designated Agent nor any other Second Priority Secured Party (in this Section 8.2(a)), (ivits capacity as such) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Term Loan Obligations does not exceed the Maximum Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall notmay, directly or through an affiliateindirectly, seek to provide DIP for or propose, or support any Person in providing or proposing, Post-Petition Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent Issuer or any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorGuarantor.
(b) In any Insolvency ProceedingEach Second Priority Agent, (i) no Revolving Loan Creditor on behalf of itself and the applicable Second Priority Secured Parties, agrees that it and they shall not oppose, and will oppose consent to, the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral release of the Second Priority Liens in connection with any use sale or other disposition of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan any Collateral (and (ii) until the Term Loan Termination Date, any post-petition assets subject to adequate protection payments received by liens in favor of the Revolving Loan Creditors from Credit Agent) under Section 363 of the Bankruptcy Code or pursuant to any plan of reorganization or similar plan if the Revolving Credit Agent has consented to such sale or disposition of such assets free and clear of the Liens (other than with respect to the proceeds of any Term Loan Priority Collateral shallsuch sale or disposition) of the holders of Revolving Credit Claims, absent provided that the consent proceeds of such sale or direction of Term Loan Agent, be applied disposition attach to the parties’ respective Liens with the same priority as set forth in Section 4 hereofthis Agreement and further provided that the Notes Agent and the holders of the Indenture Claims (and the holders of any Future Second Lien Claims, if any) may raise any objection to such sale or disposition that could otherwise be raised by an unsecured creditor of any Loan Party; provided, however, that such objections are not inconsistent with any other term or provision of this Agreement and are not based on the status of the Notes Agent or any holder of Indenture Claims as secured creditors (without limiting the foregoing, neither the Notes Agent nor any holder of Indenture Claims may raise any objections based on rights afforded by Sections 363(e) and (f) of the Bankruptcy Code to secured creditors (or by any comparable provision of any Bankruptcy Law)) with respect to the Liens granted to the Notes Agent.
(c) If any Obligor Revolving Credit Secured Party is required in any Insolvency or Obligors shall become subject Liquidation Proceeding, or otherwise, to a case under turn over or otherwise pay to the Bankruptcy Code and such Obligor estate of any Borrower or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf any other Loan Party any amount paid in respect of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more any of the Revolving Loan Lenders or one Credit Claims (each, a “Recovery”), then such Revolving Credit Secured Party shall be entitled to a reinstatement of their affiliates Revolving Credit Claims with respect to all such recovered amounts and the consent payment in full of the applicable Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and Credit Claims shall be deemed not to have waived any objections occurred for all purposes hereunder. If this Agreement shall have been terminated prior to such financing Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or such use of cash collateral as long as (i) to otherwise affect the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens obligations of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorparties hereto.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Each Second Priority Collateral shall, absent the consent or direction of Revolving Agent, on behalf of itself and the applicable Second Priority Secured Parties, agrees that notice received two Business Days prior to the entry of an order approving Post-Petition Financing shall be applied as set forth in Section 4 hereofadequate notice for each Second Priority Secured Party.
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Post-Petition Financing. (a) If any Obligor Until the Discharge of First Lien Obligations, if an Insolvency Proceeding has commenced, no Second Lien Creditor may, directly or Obligors shall become subject to a case under the Bankruptcy Code indirectly, contest, protest, or object to, and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Term Loan Lenders or one of their affiliates with the consent of the Term Loan Agent, each Revolving Loan Second Lien Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall will be deemed to have waived consented to, and hereby consents in advance to, (1) any objections use, sale, or lease of “cash collateral” (as defined in section 363(a) of the Bankruptcy Code), and (2) any Borrower or any other Obligor obtaining DIP Financing if the First Lien Agent consents to such financing use, sale, or such use lease, or DIP Financing; provided that (A) in the case of cash collateral a DIP Financing, the Second Lien Agent is not required as long as (i) a condition to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a release its Lien on the Revolving Loan Collateral (including proceeds thereof arising after as the commencement same may exist at the time of such Insolvency Proceeding) with the same relative priority as provided for under this AgreementDIP Financing, (iiiB) the Revolving Loan Creditors are permitted to Second Lien Agent, on behalf of the Second Lien Creditors, may seek (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this as permitted by Section 8.2(a))6.3, (ivC) the aggregate Second Lien Agent may object to the amount of any DIP Financing if, after taking into account the principal amount of such DIP Financing (including letters after giving effect to any Refinancing or “roll-up” of credit issued or arranged under such facility)First Lien Obligations) on any date, assuming the full funding sum of loans and commitments for such DIP Financing, together with the then-then outstanding principal amount of any First Lien Obligations and the Term Loan Obligations does not then outstanding principal amount of any DIP Financing (including the unfunded commitments under such DIP Financing) would exceed the Maximum First Lien Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contraryAmount, and (vD) in the case of a DIP Financing, the Liens securing such DIP Financing are pari passu with, or superior in priority to, the then outstanding First Lien Obligations and the Liens securing such First Lien Obligations, respectively. The Second Lien Creditors further agree that: (i) adequate notice to the Second Lien Creditors for such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) been given to the extent such DIP Financing is secured by Liens on Second Lien Creditors if the Term Loan Priority Collateral, unless the Term Loan Second Lien Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens receives notice in advance of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted hearing to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) approve such DIP Financing or use of such cash collateral is subject on an interim basis and at least 5 Business Days in advance of the hearing to approve such DIP Financing or use of cash collateral on a final basis, (ii) such DIP Financing (and any First Lien Obligations) may be secured by Liens on all or a part of the assets of the Obligors that shall be superior in priority to the Liens on the assets of the Obligors held by any other Person, (iii) the Second Lien Creditors consent to, and will, subordinate (and will be deemed hereunder to have subordinated) their Liens (A) to the Liens securing such DIP Financing (the “DIP Liens”) on the same terms (but on a basis junior to the Liens of the First Lien Creditors) as the Liens of the First Lien Creditors are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any “replacement Liens” or Liens on additional collateral granted to the First Lien Creditors as adequate protection of their interests in the Collateral (the “Senior Adequate Protection Liens”) and (C) to any professional fee or other “carve-out” agreed to by the First Lien Agent or the other First Lien Creditors and (iv) any customary “carve-out” or other similar administrative priority expense or claim consented to in writing by the First Lien Agent (or granted pursuant to any order in any Insolvency Proceeding as to which the First Lien Agent did not object), including, without limitation, breakup fees and expense reimbursement in connection with an auction of any assets of any Obligor to be paid prior to or contemporaneously with the Discharge of First Lien Obligations, will be deemed for purposes of Section 6.2 to be a use of cash collateral or will otherwise be deemed consented to by the Second Lien Creditors. Each Term Loan No Second Lien Creditor hereby agrees it shall notmay, directly or through indirectly, provide or propose, or support any other Person in providing or proposing, DIP Financing to an affiliateObligor; provided, that (x) if no First Lien Creditor or Affiliate of a First Lien Creditor offers to provide DIP Financing to the extent permitted under Section 6.2 on or before the date of the hearing to approve DIP Financing, then a Second Lien Creditor may seek to provide DIP Financing to such extent, so long as (i) no such DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior in priority to the Liens securing any First Lien Obligations shall include a “roll-up” of any Second Lien Obligations, (ii) the Revolving Loan Creditors thereon unless the Revolving Loan First Lien Agent shall have consented not be required as a condition to such DIP Financing to release its Lien on the Collateral as the same may exist at the time of such DIP Financing. To the extent , (iii) any such DIP Financing proposed by one shall provide adequate protection acceptable to the First Lien Agent or more Revolving Loan Creditors does not comply as otherwise determined in an Insolvency Proceeding, and (iv) such DIP Financing shall otherwise be extended in accordance with the terms of this Section 8.2(c)Agreement, the Term Loan and (y) First Lien Creditors may object to any such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorproposed DIP Financing.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
Appears in 1 contract
Post-Petition Financing. (a) If any Obligor Borrower, the Company, any Subsidiary, and/or any Grantor or Obligors Grantors shall become subject to a case under the Bankruptcy Code Law and such Obligor or Obligors Borrower, Company, Subsidiary, and/or Grantor as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor Grantor or ObligorsGrantors) shall move for either (x) approval of financing (“DIP Financing Financing”) to be provided by one or more of the Term Loan First Priority Lenders under Section 364 of the Bankruptcy Code or one (y) the use of their affiliates cash collateral with the consent of the Term Loan AgentSenior Agent and First Priority Lenders under Section 363 of the Bankruptcy Law, each Revolving Loan Creditor agrees that no Revolving Loan Creditor shall contest the Second Lien Agent and Second Priority Lenders agree as follows: (a) adequate notice to Second Priority Lenders of such financing or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral shall be delivered to the Second Lien Agent and Second Priority Lenders if the Second Lien Agent receives notice one (1) Business Day prior to the entry of any interim financing order and five (5) Business Days prior to the entry of a final order, in each case approving such financing or use of cash collateral, (b) such financing (including any First Priority Claims which arose prior to the Insolvency or Liquidation Proceeding) may be secured by Liens on all or a part of the assets of the Borrowers, the Company, any Subsidiary, and/or Grantors which shall be superior in priority to the Liens on the assets of Borrowers, the Company, any Subsidiary, and/or Grantors held by any other person, and (c) the Second Lien Agent and Second Priority Lenders shall not contest or oppose such financing or cash collateral use and shall be deemed to have waived any such objections to such financing or such use of cash collateral use, as long as (i) to the extent such DIP Financing is secured by Liens on Second Lien Agent for the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens benefit of the Revolving Loan Agent on the Revolving Loan Second Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain Lenders retains a Lien on the Revolving Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceedingproceeding) with the same relative priority with respect to the Senior Agent and First Priority Lenders as provided for existed prior to the commencement of the case under this Agreementthe Bankruptcy Code (subject to the Liens securing such financing as described above) and the Liens securing the First Priority Claims are subordinated to or pari passu with the Liens securing such financing, (iiiii) the Revolving Loan Creditors are permitted to seek (without objection from Second Lien Agent for the Term Loan Creditors) additional or benefit of the Second Priority Lenders receives a replacement Liens Lien on any post-petition assets consisting of Revolving Loan Collateralon which the Senior Agent and the First Priority Lenders have received a replacement Lien, with the same relative priority with respect to the Senior Agent and the First Priority Lenders as provided for existed prior to the commencement of the case under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses Bankruptcy Code (provided that the inability of the Revolving Loan Creditors Second Lien Agent to receive such a Lien or adequate protection on actions and/or the proceeds thereof under Chapter 5 of the Bankruptcy Code shall not affect the agreements and waivers set forth in this Section 8.2(aclause (a)), (iii) the interest rate, fees and advance rates and other terms applicable to any such DIP Financing and/or cash collateral usage are commercially reasonable under the circumstances, (iv) any such cash collateral use or DIP Financing does not compel any Grantor to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in the cash collateral order or documentation (or any plan or reorganization contemplated by such order or documentation) executed and delivered in connection with such DIP Financing, (v) the aggregate principal amount of such the obligations owed to the DIP Financing (including letters lenders in respect of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together when aggregated with the then-outstanding principal amount of the Term obligations outstanding under the Loan Obligations Agreement does not exceed the Maximum Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contrarySenior Debt Cap, and (vvi) any such DIP Financing or use of such cash collateral is consistent with the terms described above and otherwise subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it The foregoing provisions of this Section 6.2(a) shall notnot prevent the Second Lien Agent or the Second Priority Lenders from objecting to any provision in any cash collateral order or DIP Financing documentation relating to any provision or content of a plan of reorganization. It is understood and agreed that nothing herein shall prevent any Second Priority Lender from providing any DIP Financing, directly or through an affiliate, seek so long as the First Priority Lenders have not offered to provide DIP Financing secured by Liens such financing on Term Loan commercially reasonable terms and the Second Lien Agent and the Second Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall Lenders have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply otherwise complied with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorAgreement.
(b) In During any Insolvency or Liquidation Proceeding, : (i) no Revolving Loan Creditor the Second Priority Lenders will not oppose the Term Loan CreditorsSenior Agent’s and First Priority Lenders’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c6.2(a)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain Second Lien Agent and Second Priority Lenders will not seek adequate protection other than in the form of (x) a Lien on additional collateral if the Term Loan Collateral Senior Agent and First Priority Lenders (including proceeds thereof arising after the commencement of such Insolvency Proceedingor any subset thereof) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and granted adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use such DIP Financing, which Lien, if granted, will be subordinate to the Liens securing the First Priority Claims and such DIP Financing on the same basis as the other Liens securing the Second Priority Claims are so subordinated under this Agreement (provided that any failure of the Second Lien Agent and Second Priority Lenders to obtain such adequate protection shall not impair or otherwise affect the agreements, undertakings and consents of the Second Lien Agent and Second Priority Lenders pursuant to Section 6.2(a)), and (y) an administrative claim with priority over all other administrative claims, but junior and subordinate to the administrative claims of the Senior Agent and First Priority Lenders under the First Priority Documents and the DIP Financing (and/or cash collateral or DIP Financing meeting usage), and (iii) in the requirements of Section 8.2(c) or otherwise event the Second Lien Agent and Second Priority Lenders seek and request such adequate protection in connection accordance with the Revolving Loan Collateral and clause (ii) until above in respect of Second Priority Claims and such adequate protection is granted in the Revolving Loan Termination Dateform of a Lien on additional collateral, any then the Second Lien Agent and Second Priority Lenders agree that the Senior Agent may seek and obtain, and Second Lien Agent and Second Priority Lenders hereby consent to the granting of, a senior Lien on such additional collateral as security for the First Priority Claims as adequate protection and the Liens securing the Second Priority Claims will be subordinated to such Liens on the same basis as the other Liens securing the Second Priority Claims are subordinated under this Agreement.
(c) Except as provided in clause (a) and (b) above, the Second Lien Agent and Second Priority Lenders shall not seek or request adequate protection or adequate protection payments received by Term Loan Creditors from the proceeds of in any Revolving Loan Priority Collateral shallInsolvency or Liquidation Proceedings, absent the consent or direction of Revolving Agent, be applied as set forth and shall not seek post-petition interest in Section 4 hereofany such proceedings.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Body Central Corp)
Post-Petition Financing. (a) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for either (x) approval of financing (“DIP Financing Financing”) to be secured by any of the Collateral and to be provided by one or more of the Term Loan Lenders First Lien Creditors under Section 364 of the Bankruptcy Code or one of their affiliates as otherwise to be provided by another Person with the consent of the Term Loan AgentFirst Lien Agents, each Revolving Loan Creditor agrees or (y) the use of Collateral that no Revolving Loan Creditor constitutes cash collateral with the consent of the First Lien Agents under Section 363 of the Bankruptcy Code, subject to Section 5.2(b), the Second Lien Creditors agree as follows: (i) such DIP Financing may be secured by Liens on all or a part of the assets of the Obligors (including Collateral) which shall be superior in priority to the Liens on the assets of the Obligors held by any other Person; (ii) the Second Lien Creditors shall not contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral use and shall be deemed to have waived any objections to such financing or such use of cash collateral use, including by any objection alleging Obligors’ failure to provide “adequate protection” for the Liens of the Second Lien Creditors or otherwise, and (iii) the Second Lien Creditors further agree that their Liens on the Collateral shall be subordinated to (y) any adequate protection Liens provided to the First Lien Creditors and (z) any “carveout” for professional or United States Trustee fees agreed to by the Applicable First Lien Agent, as long as (iA) to the extent any such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent a Lien that is senior to the contrary, such DIP Financing is secured by Liens that are subordinate to or pari passu with the Liens of securing the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this AgreementFirst Lien Obligations, (iiB) the Revolving Loan Creditors retain Applicable Second Lien Agent retains a Lien on the Revolving Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceedingproceeding) with the same relative priority vis-à-vis the Liens securing the First Lien Obligations as provided for existed prior to the commencement of the case under this Agreementthe Bankruptcy Code (junior in priority to the Liens securing such DIP Financing as described above), (iiiC) the Revolving Loan Second Lien Creditors are permitted to seek (without objection from the Term Loan First Lien Creditors) additional or a replacement Liens Lien on post-petition assets consisting of Revolving Loan Collateralassets, with the same relative priority vis-à-vis the Liens securing the First Lien Obligations as provided for existed prior to the commencement of the case under this Agreement and adequate protection the Bankruptcy Code (junior in priority to the form of cash payments of interestLiens securing such DIP Financing, fees and expenses (provided that the inability of the Revolving Loan Second Lien Creditors to receive such a Lien on actions under Chapter 5 of the Bankruptcy Code or adequate protection proceeds thereof shall not affect the agreements and waivers set forth in this Section 8.2(a)clause (a), and (ivD) the sum of the principal amount of loans and letter of credit accommodations outstanding under such DIP Financing plus the aggregate principal amount of First Lien Obligations outstanding immediately after giving effect to any payment thereof with proceeds of any such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Term Loan Obligations does not exceed the Maximum First Lien Principal Amount of Term Loan Debt, unless Amount. If the Revolving Loan Applicable First Lien Agent provides prior written consent objects to the contrary, and (v) such DIP Financing or any motion by an Obligor for use of such cash collateral is subject under Section 363 of the Bankruptcy Code or to incur financing under Section 364 of the terms Bankruptcy Code, then at the written request of this Agreementthe Applicable First Lien Agent, Second Lien Creditors will join the objection of the Applicable First Lien Agent. Each Revolving Loan Creditor hereby agrees it Second Lien Creditors shall not, directly or through an affiliate, seek to provide or support DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless First Lien Creditors, without the Term Loan Agent shall have consented to such DIP Financing. To written consent of the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorApplicable First Lien Agent.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor the Second Lien Creditors will not oppose the Term Loan First Lien Creditors’ motions to receive adequate protection payments, or post-petition interest, fees, or expenses, or additional collateral or replacement collateral, or a superpriority administrative claim in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) 5.2(a), or otherwise in connection with oppose any objection by the Term Loan Collateral and Applicable First Lien Agent or the First Lien Creditors to any motion, relief, action or proceeding based on the Applicable First Lien Agent or the First Lien Creditors claiming a lack of adequate protection, (ii) until the Term Loan Termination Date, any Second Lien Creditors will not seek or accept adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a First Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this AgreementCreditors, (iii) if the Term Loan First Lien Creditors (or any subset thereof) are permitted to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and granted adequate protection in the form of cash payments additional or replacement collateral in connection with any such DIP Financing, the Second Lien Creditors may seek adequate protection in the form of interesta Lien on such additional or replacement collateral, fees which Lien, if granted, will be subordinate to the Liens securing the First Lien Obligations and expenses such DIP Financing on the same basis as the other Liens securing the Second Lien Obligations are so subordinated under this Agreement and each First Lien Lender hereby consents to the granting of such Lien (provided that the inability any failure of the Term Loan Second Lien Creditors to receive obtain such a Lien or adequate protection shall not impair or otherwise affect the agreements agreements, undertakings and waivers set forth in this consents of the Second Lien Creditors pursuant to Section 8.2(a5.2(a)), (iv) in the aggregate principal amount event one or more Second Lien Creditors seek or request such adequate protection in respect of Second Lien Obligations and such adequate protection is granted in the form of a Lien on additional or replacement collateral, then each Second Lien Creditor agrees that the Applicable First Lien Agent may seek and obtain, and each Second Lien Creditor hereby consents to the granting of, a senior Lien on such additional collateral as security for the First Lien Obligations and for any such DIP Financing (including letters of credit issued or arranged under such facility), assuming provided by the full funding of loans First Lien Creditors and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to any other Liens granted to the contrary, First Lien Creditors as adequate protection on the same basis as the other Liens securing the Second Lien Obligations are subordinated under this Agreement and (v) the Second Lien Creditors shall be entitled to seek (and the First Lien Creditors will not object to or oppose such DIP Financing efforts) (A) any budgets or use of such cash collateral financial reports provided by the Obligors to the First Lien Creditors, (B) the same access to the Obligors’ facilities, personnel, books and records as is provided by the Obligors to the First Lien Creditors and their representatives and (C) subject to the terms clauses (ii), (iii) and (iv) above, such other forms of this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior adequate protection granted to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented First Lien Creditors. If and to such DIP Financing. To the extent any DIP Financing proposed by one such additional or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object replacement Liens are insufficient to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive provide adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements interests of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination DateSecond Lien Lenders, any adequate protection payments received by Term Loan claim of such Second Lien Creditors from under Section 507(b) of the proceeds Bankruptcy Code shall be subordinate in right of payment of any Revolving Loan Priority Collateral shall, absent claim of the consent or direction First Lien Creditors under Section 507(b) of Revolving Agent, be applied as set forth in Section 4 hereof.the Bankruptcy Code
Appears in 1 contract
Samples: First/Second Lien Intercreditor Agreement (TransFirst Inc.)
Post-Petition Financing. Until the Discharge of ABL Obligations (a) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the excluding Excess ABL Obligations), if an Insolvency Proceeding has commenced, no Term Loan Lenders Creditor will, directly or one of their affiliates with the consent of the indirectly, contest, protest, or object to, and each Term Loan Agent, each Revolving Loan Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall will be deemed to have waived consented to, and hereby consents in advance to, (1) any objections use, sale, or lease of “cash collateral” (as defined in section 363(a) of the Bankruptcy Code) and (2) any Borrower or any other Obligor obtaining DIP Financing if the ABL Agent consents to such financing use, sale, or such use lease, or DIP Financing; provided that (A) in the case of cash collateral a DIP Financing, the Term Lender is not required as long as (i) a condition to the extent such DIP Financing is secured by Liens to release its Lien on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Term Loan Priority Collateral in a manner consistent with as the terms and provisions same may exist at the time of this Agreementsuch DIP Financing, (iiB) the Revolving any Term Loan Creditors retain a Lien on the Revolving Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority Creditor may seek adequate protection as provided for under this Agreementpermitted by Sections 6.3, (iiiC) the Revolving Loan Creditors are permitted to seek (without objection from the any Term Loan Creditors) additional or replacement Liens on post-petition assets consisting Creditor may object to the amount of Revolving Loan Collateralany DIP Financing if, with after taking into account the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters after giving effect to any Refinancing or “roll-up” of credit issued or arranged under such facility)ABL Obligations) on any date, assuming the full funding sum of loans the then outstanding amount of any ABL Obligations and commitments for such DIP Financing, together with the then-then outstanding principal amount of any DIP Financing (including the unfunded commitments under such DIP Financing) would exceed $57,600,000, and (D) the Liens on ABL Priority Collateral securing such DIP Financing are pari passu with, or superior in priority to the Liens securing such ABL Obligations. The Term Loan Creditors further agree that: (i) adequate notice to the Term Loan Obligations does not exceed the Maximum Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contrary, and (v) Creditors for such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections been given to the Term Loan Creditors if the Term Lender receives notice in advance of the hearing to approve such financing DIP Financing or such use of cash collateral as long as on an interim basis and at least five (i5) Business Days in advance of the hearing to the extent approve such DIP Financing is or use of cash collateral on a final basis, (ii) giving effect to clause (iii) of this Section 6.2, such DIP Financing (and such ABL Obligations) may be secured by Liens on all or a part of the assets of the Obligors that shall be (A) as to ABL Priority Collateral, superior in priority to the Liens on the assets of the Obligors held by any other Person and (B) as to Term Loan Priority Collateral, unless superior in priority to the Liens on such assets of the Obligor held by any Person other than the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this AgreementCreditors, (iii) the Term Loan Creditors are permitted consent to, and will, subordinate (and will be deemed hereunder to seek have subordinated) their Liens (without objection from A) to the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of ABL Priority Collateral securing such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such “DIP Financing, together with Liens”) on the then-outstanding principal amount same terms (but on a basis junior to the Liens of the Revolving Loan Obligations does not exceed ABL Creditors) as the applicable components Liens of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, ABL Creditors are subordinated thereto (and (v) such DIP Financing or use of such cash collateral is subject to subordination will not alter in any manner the terms of this Agreement), (B) to any “replacement Liens” or Liens on additional collateral granted to the ABL Creditors as adequate protection of their interests in the Collateral (the “Senior Adequate Protection Liens”) and (C) to any “carve-out” agreed to by the ABL Agent or the other ABL Creditors and (iv) any customary “carve-out” or other similar administrative priority expense or claim consented to in writing by the ABL Agent (or granted pursuant to any order in any Insolvency Proceeding as to which the ABL Agent did not object) to be paid prior to the Discharge of ABL Obligations will be deemed for purposes of Section 6.2 to be a use of cash collateral. Each No Term Loan Creditor hereby agrees it shall notmay, directly or through indirectly, provide or propose, or support any other Person in providing or proposing, DIP Financing to an affiliate, seek Obligor unless none of the ABL Creditors have agreed to provide (or have not consented to another Person providing) DIP Financing secured by and any Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise administrative priority claims granted in connection with the Revolving Loan DIP Financing are subordinated to the Liens in favor of the ABL Creditors on the ABL Priority Collateral and (ii) until claims of the Revolving Loan Termination Date, any adequate protection payments received by Term Loan ABL Creditors from in respect of the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereofABL Obligations.
Appears in 1 contract
Post-Petition Financing. (a) If any Obligor Until the Discharge of First Lien Obligations, if an Insolvency Proceeding has commenced, no Second Lien Creditor will, directly or Obligors shall become subject to a case under the Bankruptcy Code indirectly, contest, protest, or object to, and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Term Loan Lenders or one of their affiliates with the consent of the Term Loan Agent, each Revolving Loan Second Lien Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall will be deemed to have waived consented to, and hereby consents in advance to, (1) any objections use, sale, or lease of “cash collateral” (as defined in Section 363(a) of the Bankruptcy Code), and (2) the Borrower or any other Obligor obtaining DIP Financing if the First Lien Agent consents to such financing use, sale, or such use lease, or DIP Financing; provided that (A) in the case of cash collateral a DIP Financing, the Second Lien Agent is not required as long as (i) a condition to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a release its Lien on the Revolving Loan Collateral (including proceeds thereof arising after as the commencement same may exist at the time of such Insolvency Proceeding) with the same relative priority as provided for under this AgreementDIP Financing, (iiiB) the Revolving Loan Creditors are permitted to any Second Lien Creditor may seek (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this as permitted by Section 8.2(a))6.3, (ivC) any Second Lien Creditor may object to the aggregate amount of any DIP Financing if, after taking into account the principal amount of such DIP Financing (including letters after giving effect to any Refinancing or “roll-up” of credit issued or arranged under such facility)First Lien Obligations) on any date, assuming the full funding sum of loans and commitments for such DIP Financing, together with the then-then outstanding principal amount of any First Lien Obligations and the Term Loan Obligations does not then outstanding principal amount of any DIP Financing (including the unfunded commitments under such DIP Financing) would exceed the Maximum First Lien Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contraryAmount, and (vD) in the case of a DIP Financing, the Liens securing such DIP Financing are pari passu with, or superior in priority to, the then outstanding First Lien Obligations and the Liens securing such First Lien Obligations, respectively. The Second Lien Creditors further agree that: (i) adequate notice to the Second Lien Creditors for such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) been given to the extent such DIP Financing is secured by Liens on Second Lien Creditors if the Term Loan Priority Collateral, unless the Term Loan Second Lien Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens receives notice in advance of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted hearing to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) approve such DIP Financing or use of such cash collateral is subject on an interim basis and at least 5 Business Days in advance of the hearing to approve such DIP Financing or use of cash collateral on a final basis, (ii) such DIP Financing (and any First Lien Obligations) may be secured by Liens on all or a part of the assets of the Obligors that shall be superior in priority to the Liens on the assets of the Obligors held by any other Person, (iii) the Second Lien Creditors consent to, and will, subordinate (and will be deemed hereunder to have subordinated) their Liens (A) to the Liens securing such DIP Financing (the “DIP Liens”) on the same terms (but on a basis junior to the Liens of the First Lien Creditors) as the Liens of the First Lien Creditors are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any “replacement Liens” or Liens on additional collateral granted to the First Lien Creditors as adequate protection of their interests in the Collateral (the “Senior Adequate Protection Liens”) and (C) to any “carve-out” agreed to by the First Lien Agent or the other First Lien Creditors and (iv) any customary “carve-out” or other similar administrative priority expense or claim consented to in writing by the First Lien Agent (or granted pursuant to any order in any Insolvency Proceeding as to which the First Lien Agent did not object) to be paid prior to the Discharge of First Lien Obligations will be deemed for purposes of Section 6.2 to be a use of cash collateral. Each Term Loan No Second Lien Creditor hereby agrees it shall notmay, directly or through indirectly, provide or propose, or support any other Person in providing or proposing, DIP Financing to an affiliateObligor secured by Liens equal or senior in priority to the Liens securing the First Lien Obligations. Notwithstanding the foregoing, any Second Lien Creditor may seek to provide a junior DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior junior in priority to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent securing any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorFirst Lien Obligations.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
Appears in 1 contract
Samples: Intercreditor Agreement (Spinal Elements Holdings, Inc.)
Post-Petition Financing. (a) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for either (x) approval of financing (“DIP Financing Financing”) to be provided by one or more of the Term Loan Lenders First Lien Creditors under Section 364 of the Bankruptcy Code or one (y) the use of their affiliates cash collateral with the consent of the Term First Lien Creditors under Section 363 of the Bankruptcy Code, subject to Section 7.2(b), the Second Lien Creditors agree as follows: (a) adequate notice to Second Lien Creditors for such financing or use of cash collateral shall be delivered to the Second Lien Creditors if the Second Lien Creditors receives notice two (2) Business Days prior to the entry of the order approving such financing or use of cash collateral, (b) such financing (including any First Lien Loan AgentObligations which arose prior to the Insolvency Proceeding) may be secured by Liens on all or a part of the assets of the Obligors which shall be superior in priority to the Liens on the assets of the Obligors held by any other Person, each Revolving Loan Creditor agrees that no Revolving Loan Creditor and (c) the Second Lien Creditors shall not contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) financing or such use of cash collateral use and shall be deemed to have waived any objections to such financing or such use of cash collateral use, including by any objection alleging Obligors’ failure to provide “adequate protection” for the Liens of the Second Lien Creditors or otherwise, as long as (i) to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Second Lien Creditors retain a Lien on the Revolving Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceedingproceeding) with the same relative priority as provided for existed prior to the commencement of the case under this Agreementthe Bankruptcy Code (subject to the Liens securing such financing as described above), (iiiii) the Revolving Loan First Lien Creditors are permitted do not object to seek (without objection from the Term Loan Creditors) additional or Second Lien Creditors receiving a replacement Liens Lien on post-petition assets consisting of Revolving Loan Collateralassets, with the same relative priority as provided for existed prior to the commencement of the case under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses Bankruptcy Code (provided that the inability of the Revolving Loan Second Lien Creditors to receive such a Lien on actions under Chapter 5 of the Bankruptcy Code or adequate protection proceeds thereof shall not affect the agreements and waivers set forth in this Section 8.2(aclause (a)), (iviii) the aggregate principal amount of such DIP Financing (including letters loans and letter of credit issued or arranged accommodations outstanding under such facility), assuming the full funding of loans and commitments for such DIP Financingpost-petition financing, together with the then-outstanding principal amount of the Term pre-petition First Lien Loan Obligations does Obligations, shall not exceed the Maximum First Lien Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contraryAmount, and (viv) such DIP Financing financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In Notwithstanding the foregoing provisions in this Section 7.2, in any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose if the Term Loan Creditors’ motions to receive First Lien Creditors (or any subset thereof) are granted adequate protection payments, or post-petition interest, or in the form of additional collateral in connection with any use of cash collateral or DIP Financing meeting Financing, the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Second Lien Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted to may seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interesta Lien on such additional collateral, fees which Lien, if granted, will be subordinate to the Liens securing the First Lien Loan Obligations and expenses such DIP Financing on the same basis as the other Liens securing the Second Lien Loan Obligations are so subordinated under this Agreement (provided that the inability any failure of the Term Loan Second Lien Creditors to receive obtain such a Lien or adequate protection shall not impair or otherwise affect the agreements agreements, undertakings and waivers set forth in this consents of the Second Lien Creditors pursuant to Section 8.2(a7.2(a)), and (ivii) in the aggregate principal amount event one or more Second Lien Creditors seek or request such adequate protection in respect of Second Lien Loan Obligations and such adequate protection is granted in the form of a Lien on additional collateral , then each Second Lien Creditor agrees that the First Lien Agent may seek and obtain, and each Second Lien Creditor hereby consents to the granting of, a senior Lien on such additional collateral as security for the First Lien Loan Obligations and for any such DIP Financing (including letters of credit issued or arranged under such facility), assuming provided by the full funding of loans First Lien Creditors and commitments for such DIP Financing, together with to any other Liens granted to the then-outstanding principal amount of First Lien Creditors as adequate protection on the Revolving same basis as the other Liens securing the Second Lien Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of are subordinated under this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(dc) In The Second Lien Creditors may seek post-petition interest and/or adequate protection payments in any Insolvency Proceeding, (i) no Term Loan Creditor will and the First Lien Lenders may oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereofsuch motions.
Appears in 1 contract
Samples: Intercreditor Agreement (Penhall International Corp)
Post-Petition Financing. (a) If any Obligor or Obligors Credit Party shall become subject to a case under an Insolvency Proceeding and the Bankruptcy Code and such Obligor Credit Parties or Obligors as debtor(s)-in-possession any trustee, monitor, receiver or similar official therefor moves for (or a trustee appointed on behalf of such Obligor or Obligorsa) shall move for approval of DIP Financing financing to be provided in good faith by one any Revolving Credit Secured Party (in such capacity, the “Post-Petition Lenders”) as permitted under applicable Insolvency Laws or more (b) the use of the Term Loan Lenders or one of their affiliates cash collateral with the consent of the Term Loan Agent, each Revolving Loan Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing Credit Agent as permitted under applicable Insolvency Laws (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing provided by the Post-Petition Lenders, the “Post-Petition Financing”), then the Term Loan Agent and the Term Loan Lenders agree: (i) not to object to any use of cash collateral or any such financing (nor support any other Person objecting to such use of cash collateral as or such financing) on the grounds of a failure to provide “adequate protection”, and (ii) not to demand any form of “adequate protection” or any other form of relief in connection with such use of such cash collateral or such financing, in each of clause (i) and clause (ii), so long as (iA) to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Term Loan Agent provides prior written consent to and the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Term Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors Lenders retain a Lien on the Revolving Loan pre-petition Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceedingproceeding) with the same relative priority as provided for existed prior to the commencement of the case or proceeding under this Agreementapplicable Insolvency Laws to the extent such Liens were valid, perfected, enforceable and not avoided, (iiiB) the Revolving Loan Creditors are permitted to seek (without objection from the Term Loan Creditors) additional or Agent and the Term Loan Lenders receive, as adequate protection, a replacement Liens Lien on post-petition assets consisting of Revolving Loan Collateral, with to the same relative priority as provided for under this Agreement and adequate protection in extent granted to the form Post-Petition Lenders, such replacement Lien to be subordinate to (1) the Lien of cash payments of interestsuch Post-Petition Lenders, fees and expenses (provided that 2) the inability Lien of the Revolving Loan Creditors Credit Agent and the Lien of the Revolving Credit Secured Parties with respect to receive such a Lien or the pre-petition obligations, (3) any adequate protection shall Lien provided to the Revolving Credit Agent and the Revolving Credit Secured Parties and (4) to any carve-out amount for professionals and directors and officers following the occurrence of any event of default under any such debtor-in-possession financing or the United States Trustee or any other insolvency officer and its counsel that has been agreed upon by the Revolving Credit Agent, (C) the Post-Petition Financing will not affect require the agreements and waivers Credit Parties to seek confirmation of a specific plan of reorganization or arrangement for which all or substantially all of the material terms are set forth in this Section 8.2(a)the documentation evidencing such Post-Petition Financing (but for the avoidance of doubt, such Post-Petition Financing may include deadlines for the confirmation of a plan of reorganization or arrangement satisfactory to the Post-Petition Lenders), (ivD) the Post-Petition Lenders agree that they will not seek court approval to make, issue or incur loans or letter of credit accommodations pursuant to such Post-Petition Financing that would cause the sum of (x) the aggregate outstanding principal amount of such DIP Financing (including letters loans and letter of credit issued or arranged under accommodations made pursuant to such facility), assuming financing plus (y) the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of pre-petition Bank Debt, in each case, to the extent having priority over the Priority Term Debt to exceed the sum of (aa) the Priority Bank Debt, plus (bb) the Permitted Insolvency Increase Amount, and (E) the Post-Petition Financing is otherwise in compliance with the provisions of Section 7.1 (other than (x) clauses (i) and (iii) of such Section 7.1 and (y) clause (a) of the definition of Specified Revolving Credit Amendments). Nothing contained herein shall be deemed to limit the rights of the Term Loan Obligations does not exceed the Maximum Principal Amount of Agent or any Term Loan Debt, unless the Revolving Loan Agent provides prior written consent Lender to the contrary, and (v) such DIP object to Post-Petition Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available other than the failure to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive provide “adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move protection” for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) to the extent such DIP Financing is secured by Liens on the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Term Loan Agent on and the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Term Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior to the Liens of the Revolving Loan Creditors thereon unless the Revolving Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Revolving Loan Creditors does not comply with this Section 8.2(c), the Term Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorLenders.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
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Post-Petition Financing. (a) If any Obligor Until the Discharge of First Lien Obligations, if an Insolvency Proceeding has commenced, no Second Lien Creditor may, directly or Obligors shall become subject to a case under the Bankruptcy Code indirectly, contest, protest, or object to, and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Term Loan Lenders or one of their affiliates with the consent of the Term Loan Agent, each Revolving Loan Second Lien Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall will be deemed to have waived consented to, and hereby consents in advance to, (1) any objections use, sale, or lease of “cash collateral” (as defined in section 363(a) of the Bankruptcy Code), and (2) any Borrower or any other Obligor obtaining DIP Financing if the First Lien Agent consents to such financing use, sale, or such use lease, or DIP Financing; provided that (A) in the case of cash collateral a DIP Financing, the Second Lien Agent is not required as long as (i) a condition to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a release its Lien on the Revolving Loan Collateral (including proceeds thereof arising after as the commencement same may exist at the time of such Insolvency Proceeding) with the same relative priority as provided for under this AgreementDIP Financing, (iiiB) the Revolving Loan Creditors are permitted to Second Lien Agent, on behalf of the Second Lien Creditors, may seek (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this as permitted by Section 8.2(a))6.3, (ivC) the aggregate Second Lien Agent may object to the amount of any DIP Financing if, after taking into account the principal amount of such DIP Financing (including letters after giving effect to any Refinancing or “roll-up” of credit issued or arranged under such facility)First Lien Obligations) on any date, assuming the full funding sum of loans and commitments for such DIP Financing, together with the then-then outstanding principal amount of any First Lien Obligations and the Term Loan Obligations does not then outstanding principal amount of any DIP Financing (including the unfunded commitments under such DIP Financing) would exceed the Maximum First Lien Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contraryAmount, and (vD) in the case of a DIP Financing, the Liens securing such DIP Financing are pari passu with, or superior in priority to, the then outstanding First Lien Obligations and the Liens securing such First Lien Obligations, respectively. The Second Lien Creditors further agree that: (i) adequate notice to the Second Lien Creditors for such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) been given to the extent such DIP Financing is secured by Liens on Second Lien Creditors if the Term Loan Priority Collateral, unless the Term Loan Second Lien Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens receives notice in advance of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted hearing to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) approve such DIP Financing or use of such cash collateral is subject on an interim basis and at least 5 Business Days in advance of the hearing to approve such DIP Financing or use of cash collateral on a final basis, (ii) such DIP Financing (and any First Lien Obligations) may be secured by Liens on all or a part of the assets of the Obligors that shall be superior in priority to the Liens on the assets of the Obligors held by any other Person, (iii) the Second Lien Creditors consent to, and will, subordinate (and will be deemed hereunder to have subordinated) their Liens (A) to the Liens securing such DIP Financing (the “DIP Liens”) on the same terms (but on a basis junior to the Liens of the First Lien Creditors) as the Liens of the First Lien Creditors are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any “replacement Liens” or Liens on additional collateral granted to the First Lien Creditors as adequate protection of their interests in the Collateral (the “Senior Adequate Protection Liens”) and (C) to any professional fee or other “carve-out” agreed to by the First Lien Agent or the other First Lien Creditors and (iv) any customary “carve-out” or other similar administrative priority expense or claim consented to in writing by the First Lien Agent (or granted pursuant to any order in any Insolvency Proceeding as to which the First Lien Agent did not object), including, without limitation, break up fees and expense reimbursement in connection with an auction of any assets of any Obligor to be paid prior to or contemporaneously with the Discharge of First Lien Obligations, will be deemed for purposes of Section 6.2 to be a use of cash collateral or will otherwise be deemed consented to by the Second Lien Creditors. Each Term Loan No Second Lien Creditor hereby agrees it shall notmay, directly or through indirectly, provide or propose, or support any other Person in providing or proposing, DIP Financing to an affiliateObligor; provided, that (x) if no First Lien Creditor or Affiliate of a First Lien Creditor offers to provide DIP Financing to the extent permitted under Section 6.2 on or before the date of the hearing to approve DIP Financing, then a Second Lien Creditor may seek to provide DIP Financing to such extent, so long as (i) no such DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior in priority to the Liens securing any First Lien Obligations shall include a “roll-up” of any Second Lien Obligations, (ii) the Revolving Loan Creditors thereon unless the Revolving Loan First Lien Agent shall have consented not be required as a condition to such DIP Financing to release its Lien on the Collateral as the same may exist at the time of such DIP Financing. To the extent , (iii) any such DIP Financing proposed by one shall provide adequate protection acceptable to the First Lien Agent or more Revolving Loan Creditors does not comply as otherwise determined in an Insolvency Proceeding, and (iv) such DIP Financing shall otherwise be extended in accordance with the terms of this Section 8.2(c)Agreement, the Term Loan and (y) First Lien Creditors may object to any such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorproposed DIP Financing.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
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Post-Petition Financing. (a) If any Obligor Until the Discharge of First Lien Obligations, if an Insolvency Proceeding has commenced, no Second Lien Creditor may, directly or Obligors shall become subject to a case under the Bankruptcy Code indirectly, contest, protest, or object to, and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Term Loan Lenders or one of their affiliates with the consent of the Term Loan Agent, each Revolving Loan Second Lien Creditor agrees that no Revolving Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall will be deemed to have waived consented to, and hereby consents in advance to, (1) any objections use, sale, or lease of “cash collateral” (as defined in section 363(a) of the Bankruptcy Code), and (2) any Borrower or any other Obligor obtaining DIP Financing if the First Lien Agent consents to such financing use, sale, or such use lease, or DIP Financing; provided that (A) in the case of cash collateral a DIP Financing, the Second Lien Creditor is not required as long as (i) a condition to the extent such DIP Financing is secured by Liens on the Revolving Loan Priority Collateral, unless the Revolving Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens of the Revolving Loan Agent on the Revolving Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Revolving Loan Creditors retain a release its Lien on the Revolving Loan Collateral (including proceeds thereof arising after as the commencement same may exist at the time of such Insolvency Proceeding) with the same relative priority as provided for under this AgreementDIP Financing, (iiiB) the Revolving Loan Creditors are permitted to Second Lien Creditor, may seek (without objection from the Term Loan Creditors) additional or replacement Liens on post-petition assets consisting of Revolving Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Revolving Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this as permitted by Section 8.2(a))6.3, (ivC) the aggregate Second Lien Creditor may object to the amount of any DIP Financing if, after taking into account the principal amount of such DIP Financing (including letters after giving effect to any Refinancing or “roll-up” of credit issued or arranged under such facility)First Lien Obligations) on any date, assuming the full funding sum of loans and commitments for such DIP Financing, together with the then-then outstanding principal amount of any First Lien Obligations and the Term Loan Obligations does not then outstanding principal amount of any DIP Financing (including the unfunded commitments under such DIP Financing) would exceed the Maximum First Lien Principal Amount of Term Loan Debt, unless the Revolving Loan Agent provides prior written consent to the contraryAmount, and (vD) in the case of a DIP Financing, the Liens securing such DIP Financing are pari passu with, or superior in priority to, the then outstanding First Lien Obligations and the Liens securing such First Lien Obligations, respectively. The Second Lien Creditor further agree that: (i) adequate notice to the Second Lien Creditor for such DIP Financing or use of such cash collateral is subject to the terms of this Agreement. Each Revolving Loan Creditor hereby agrees it shall not, directly or through an affiliate, seek to provide DIP Financing secured by Liens on Term Loan Priority Collateral equal or senior to the Liens of the Term Loan Creditors thereon unless the Term Loan Agent shall have consented to such DIP Financing. To the extent any DIP Financing proposed by one or more Term Loan Creditors does not comply with this Section 8.2(a), the Revolving Loan Creditors may object to such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditor.
(b) In any Insolvency Proceeding, (i) no Revolving Loan Creditor will oppose the Term Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(a) or otherwise in connection with the Term Loan Collateral and (ii) until the Term Loan Termination Date, any adequate protection payments received by Revolving Loan Creditors from the proceeds of any Term Loan Priority Collateral shall, absent the consent or direction of Term Loan Agent, be applied as set forth in Section 4 hereof.
(c) If any Obligor or Obligors shall become subject to a case under the Bankruptcy Code and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for approval of DIP Financing to be provided by one or more of the Revolving Loan Lenders or one of their affiliates with the consent of the Revolving Loan Agent, each Term Loan Creditor agrees that no Term Loan Creditor shall contest or oppose in any manner such DIP Financing (except to the extent expressly permitted pursuant to this Section 8.2(c)) or such use of cash collateral and shall be deemed to have waived any objections to such financing or such use of cash collateral as long as (i) been given to the extent such DIP Financing is secured by Liens on Second Lien Creditor if the Term Loan Priority Collateral, unless the Term Loan Agent provides prior written consent to the contrary, such DIP Financing is secured by Liens that are subordinate to the Liens Second Lien Creditor receives notice in advance of the Term Loan Agent on the Term Loan Priority Collateral in a manner consistent with the terms and provisions of this Agreement, (ii) the Term Loan Creditors retain a Lien on the Term Loan Collateral (including proceeds thereof arising after the commencement of such Insolvency Proceeding) with the same relative priority as provided for under this Agreement, (iii) the Term Loan Creditors are permitted hearing to seek (without objection from the Revolving Loan Creditors) additional or replacement Liens on post-petition assets consisting of Term Loan Collateral, with the same relative priority as provided for under this Agreement and adequate protection in the form of cash payments of interest, fees and expenses (provided that the inability of the Term Loan Creditors to receive such a Lien or adequate protection shall not affect the agreements and waivers set forth in this Section 8.2(a)), (iv) the aggregate principal amount of such DIP Financing (including letters of credit issued or arranged under such facility), assuming the full funding of loans and commitments for such DIP Financing, together with the then-outstanding principal amount of the Revolving Loan Obligations does not exceed the applicable components of the Maximum Principal Amount of Revolving Loan Debt, unless the Term Loan Agent provides prior written consent to the contrary, and (v) approve such DIP Financing or use of such cash collateral is subject on an interim basis and at least 5 Business Days in advance of the hearing to approve such DIP Financing or use of cash collateral on a final basis, (ii) such DIP Financing (and any First Lien Obligations) may be secured by Liens on all or a part of the assets of the Obligors that shall be superior in priority to the Liens on the assets of the Obligors held by any other Person, (iii) the Second Lien Creditor consent to, and will, subordinate (and will be deemed hereunder to have subordinated) their Liens (A) to the Liens securing such DIP Financing (the “DIP Liens”) on the same terms (but on a basis junior to the Liens of the First Lien Creditors) as the Liens of the First Lien Creditors are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any “replacement Liens” or Liens on additional collateral granted to the First Lien Creditors as adequate protection of their interests in the Collateral (the “Senior Adequate Protection Liens”) and (C) to any professional fee or other “carve-out” agreed to by the First Lien Agent or the other First Lien Creditors and (iv) any customary “carve-out” or other similar administrative priority expense or claim consented to in writing by the First Lien Agent (or granted pursuant to any order in any Insolvency Proceeding as to which the First Lien Agent did not object), including, without limitation, break up fees and expense reimbursement in connection with an auction of any assets of any Obligor to be paid prior to or contemporaneously with the Discharge of First Lien Obligations, will be deemed for purposes of Section 6.2 to be a use of cash collateral or will otherwise be deemed consented to by the Second Lien Creditor. Each Term Loan No Second Lien Creditor hereby agrees it shall notmay, directly or through indirectly, provide or propose, or support any other Person in providing or proposing, DIP Financing to an affiliateObligor; provided, that (x) if no First Lien Creditor or Affiliate of a First Lien Creditor offers to provide DIP Financing to the extent permitted under Section 6.2 on or before the date of the hearing to approve DIP Financing, then a Second Lien Creditor may seek to provide DIP Financing to such extent, so long as (i) no such DIP Financing secured by Liens on Revolving Loan Priority Collateral equal or senior in priority to the Liens securing any First Lien Obligations shall include a “roll-up” of any Second Lien Obligations, (ii) the Revolving Loan Creditors thereon unless the Revolving Loan First Lien Agent shall have consented not be required as a condition to such DIP Financing to release its Lien on the Collateral as the same may exist at the time of such DIP Financing. To the extent , (iii) any such DIP Financing proposed by one shall provide adequate protection acceptable to the First Lien Agent or more Revolving Loan Creditors does not comply as otherwise determined in an Insolvency Proceeding, and (iv) such DIP Financing shall otherwise be extended in accordance with the terms of this Section 8.2(c)Agreement, the Term Loan and (y) First Lien Creditors may object to any such non-compliant terms on any grounds available, including on grounds available to a secured creditor and to an unsecured creditorproposed DIP Financing.
(d) In any Insolvency Proceeding, (i) no Term Loan Creditor will oppose the Revolving Loan Creditors’ motions to receive adequate protection payments, or post-petition interest, or additional collateral in connection with any use of cash collateral or DIP Financing meeting the requirements of Section 8.2(c) or otherwise in connection with the Revolving Loan Collateral and (ii) until the Revolving Loan Termination Date, any adequate protection payments received by Term Loan Creditors from the proceeds of any Revolving Loan Priority Collateral shall, absent the consent or direction of Revolving Agent, be applied as set forth in Section 4 hereof.
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