Intercreditor Matters. (a) Each of the Administrative Agent and Lenders, by delivering its signature page hereto shall be deemed to have (i) acknowledged receipt of, consented to and approved and agreed to be bound by the Post-Petition Intercreditor Arrangement, and (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien Collateral Trustee, as applicable, not to object to the Post-Petition Intercreditor Arrangements and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor Arrangements. (b) The Tranche B Lenders party hereto constitute “Required Lenders” under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of the Prepetition Second Lien Notes. (c) Notwithstanding anything herein to the contrary, the Liens and security interests granted to (i) the Administrative Agent pursuant to this Agreement or any other Loan Documents and the exercise of any right or remedy with respect to the Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant to the Prepetition First Lien Credit Agreement or any other Prepetition First Lien Loan Document and the exercise of any right or remedy with respect to the collateral by the Prepetition First Lien Agent thereunder, and (iii) the Prepetition Second Lien Collateral Trustee pursuant to the Prepetition Second Lien Credit Agreement, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document and the exercise of any right or remedy with respect to the collateral by the Prepetition Second Lien Collateral Trustee thereunder, in each case, are subject to the terms of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms of the Post-Petition Intercreditor Arrangement and the Prepetition Intercreditor Agreement, the Loan Documents, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms of the Post-Petition Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents and the Prepetition Second Lien Notes Documents, as applicable. (d) This Agreement is not intended to, and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement). [Signature Pages Follow]
Appears in 2 contracts
Sources: Senior Secured Debtor in Possession Credit Agreement (Sunedison, Inc.), Senior Secured Debtor in Possession Credit Agreement (Sunedison, Inc.)
Intercreditor Matters. (a) Each Lender from time to time party hereto, the Agent and the Borrower hereby consent to and agree with the terms of the Administrative Agent Senior Debt Intercreditor Agreement and Lenders, by delivering its signature page hereto shall be deemed to have such Lenders hereby (i) acknowledged receipt of, consented to acknowledge and approved agree that each General Lien and/or Priority Lien in all Collateral now owned or hereafter acquired and agreed to be bound by the Post-Petition Intercreditor Arrangement, and (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien Collateral Trustee, as applicable, not to object to the Post-Petition Intercreditor Arrangements and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor Arrangements.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of the Prepetition Second Lien Notes.
(c) Notwithstanding anything herein to the contrary, the Liens and security interests granted to (i) the Administrative Agent pursuant to this Agreement or any other Loan Documents and the exercise of any right or remedy all remedies available with respect to the such Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant to the Prepetition First Lien Credit Agreement or any other Prepetition First Lien Loan Document and the exercise of any right or remedy with respect to the collateral by the Prepetition First Lien Agent thereunder, and (iii) the Prepetition Second Lien Collateral Trustee pursuant to the Prepetition Second Lien Credit Agreement, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document and the exercise of any right or remedy with respect to the collateral by the Prepetition Second Lien Collateral Trustee thereunder, in each case, are subject to the terms of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms of the Post-Petition Intercreditor Arrangement and the Prepetition Senior Debt Intercreditor Agreement, (ii) directs the Loan Documents, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms Agent on their behalf to enter into each of the Post-Petition Senior Debt Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents Agreement and the Prepetition Second Lien Notes Documents, as applicable.
(d) This Agreement is not intended to, Collateral Agency Agreements and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement consents to the service by the Agent in the capacity of Priority Collateral Agent and Designated Collateral Subagent (as defined in the Prepetition General Security Agreement) and (iii) acknowledges and agrees that:
(A) With respect to the Debenture Holders, the determination of the Required Enforcement General Secured Parties shall be made based on the entire amount of Senior Debenture Obligations then outstanding voting on a consolidated basis as a single vote as directed to the Bond Trustee by such Debenture Holders as may be required for any enforcement action under the terms of the Indenture, and
(B) With respect to the Lenders, the determination of the Required Enforcement General Secured Parties, the Required General Secured Parties and the Required Priority Secured parties shall be made based on the entire amount of Senior Revolving Credit Obligations then outstanding voting on a consolidated basis as a single vote as directed by the Required Lenders.
(b) Each Lender from time to time party hereto, the Agent and the Borrower hereby further consent to and agree with the terms of the Leased Facility Intercreditor Agreement). [Signature Pages Follow]Agreement and the Securitization Intercreditor Agreement and directs the Agent on their behalf to enter into such agreements.
Appears in 2 contracts
Sources: Credit Agreement (Cone Mills Corp), Credit Agreement (Cone Mills Corp)
Intercreditor Matters. In accordance with the Intercreditor Agreement, certain determinations and directions from the Secured Creditors shall be decided through an Intercreditor Vote.
(a) Each of the Administrative Agent and Lenders, by delivering its signature page hereto shall be deemed to have (i) acknowledged receipt of, consented to and approved and agreed to be bound by the Post-Petition Intercreditor Arrangement, and (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes The Trustee and the Prepetition Second Lien Collateral TrusteeOwners agree that any calculation or determination made by the Intercreditor Agent and each determination made or instruction given in accordance with the terms of the Intercreditor Agreement shall, as applicablein the absence of manifest error, not to object to be binding upon the Post-Petition Intercreditor Arrangements Trustee and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor ArrangementsOwners.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” Each Owner shall be entitled to vote in each Intercreditor Vote (indirectly via the Trustee) conducted under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of the Prepetition Second Lien NotesIntercreditor Agreement.
(c) Notwithstanding anything herein to the contrarycontrary herein, the Liens and security interests granted to (i) the Administrative Agent pursuant to this Agreement or any other Loan Documents and the exercise of any right or remedy with respect to the Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant to the Prepetition First Lien Credit Agreement or any other Prepetition First Lien Loan Document and the exercise of any right or remedy with respect to the collateral by the Prepetition First Lien Agent thereunder, and (iii) the Prepetition Second Lien Collateral Trustee pursuant to the Prepetition Second Lien Credit Agreement, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document and the exercise of any right or remedy with respect to the collateral by the Prepetition Second Lien Collateral Trustee thereunder, in each case, are subject to the terms of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms of the Post-Petition Intercreditor Arrangement and the Prepetition Intercreditor Agreement, the Loan Documents, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms of the Post-Petition Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) be required to provide any such direction, take any position in such action or exercise any actiondiscretionary rights or remedies herein, suit, or proceeding (or support give any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and consent under any of the Prepetition First Lien Series 2017 Loan Documents, Prepetition Second Lien enter into any agreement amending, modifying, supplementing or waiving any provision of any Series 2017 Loan Document or provide any direction to the Intercreditor Agent unless it shall have been expressly directed in writing to do so by the Majority Holders and shall have received indemnity and security satisfactory to it from the directing Owners against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action, and any action taken or failure to act pursuant thereto shall be binding upon all the Owners. The Trustee shall not be required to provide any indemnity to the Intercreditor Agent, the Collateral Agent in connection with providing a direction under the Intercreditor Agreement, any such indemnity to be provided by the directing Owners. The Trustee shall have no liability or responsibility for any failure or delay on the part of any of the Issuer, the Intercreditor Agent or the Collateral Agent in connection with performing their respective duties under the Series 2017 Loan Documents and or the Prepetition Second Lien Notes Documents, as applicabletaking of any action or exercise of a remedy under any Series 2017 Loan Document.
(d) This Agreement In connection with any determination, remedy or vote under the Intercreditor Agreement, the Trustee is not intended toauthorized and directed to (i) provide to the Intercreditor Agent any information in the possession of the Trustee in respect of the amount of principal of and interest owing on the Senior Bonds and (ii) provide votes to the Intercreditor Agent in response to any notice of an Intercreditor Vote to the Intercreditor Agent at the direction of, and shall noton behalf of, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement). [Signature Pages Follow]each Owner.
Appears in 1 contract
Sources: Trust Indenture
Intercreditor Matters. (a) Each of the Administrative Agent and Lenders, by delivering its signature page hereto shall be deemed to have (i) acknowledged receipt of, consented to and approved and agreed to be bound by the Post-Petition Intercreditor Arrangement, and (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien Collateral Trustee, as applicable, not to object to the Post-Petition Intercreditor Arrangements and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor Arrangements.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of the Prepetition Second Lien Notes.
(c) Notwithstanding anything herein to the contrary, the Liens and security interests granted to (i) the Administrative Agent pursuant to this Agreement or any other Loan Documents and the exercise of any right or remedy certain rights and remedies with respect to the respective security interests and liens of the Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant to the Prepetition First Lien Credit Agreement or any other Prepetition First Lien Loan Document and the exercise of any right or remedy collateral agent under the Term Facility with respect to the assets of the Loan Parties will be subject to an intercreditor agreement that will contain customary lien subordination, completion rights, collateral by the Prepetition First Lien Agent thereunderaccess and intellectual property licensing provisions, all in form and (iii) the Prepetition Second Lien Collateral Trustee pursuant substance reasonably satisfactory to the Prepetition Second Lien Credit AgreementArrangers, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document the arrangers of the Term Facility and the exercise of any right or remedy with respect to Company (the collateral by “Intercreditor Agreement”). Documentation: The definitive credit documentation for ABL Facility will include, among other items, a credit agreement, guarantees, Intercreditor Agreement and appropriate pledge and security agreements (collectively, the Prepetition Second Lien Collateral Trustee thereunder“ABL Facility Documents”). The ABL Facility Documents will contain the terms set forth in this Exhibit C, in each case, are subject substantially similar to the corresponding terms (if any) set forth in the Existing Credit Facility, except as expressly set forth herein and, to the extent any other terms are not expressly set forth in this Exhibit C or the Existing Credit Facility will (i) be usual and customary for asset based facilities made available to borrowers in a similar industry to the Borrowers, (ii) be negotiated in good faith within a reasonable time period to be determined based on the expected Closing Date and taking into account the timing of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms syndication of the Post-Petition Intercreditor Arrangement ABL Facility and the Prepetition Intercreditor pre-closing requirements of the Acquisition Agreement, (iii) contain such other terms as the Loan DocumentsBorrower and the Arrangers shall reasonably agree and (iv) give due regard to a combination of (a) the leverage profile and projected free cash flow generation of the Borrower and its restricted subsidiaries after giving effect to the Transactions, (b) general trends and risks affecting the industry and the Borrower and its restricted subsidiaries and (c) prevailing market conditions at the time of syndication of the Facilities (iv) reflect the operational and strategic requirements of the Borrower and its restricted subsidiaries, (v) take into account the proposed business plan and financial model of the Company and (vi) be in a form such that they do not impair the availability of the ABL Facility on the Closing Date if the conditions to funding set forth or referred to in Section 2 of the Commitment Letter are satisfied (collectively, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms of the Post-Petition Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties“Documentation Principles”), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents and the Prepetition Second Lien Notes Documents, as applicable.
(d) This Agreement is not intended to, and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement). [Signature Pages Follow]
Appears in 1 contract
Sources: Commitment Letter (Staples Inc)
Intercreditor Matters. (a) Each Notwithstanding anything to the contrary contained herein, the rights and remedies of the Administrative Agent and the Lenders, by delivering its signature page hereto shall be deemed to have (i) acknowledged receipt of, consented to and approved and agreed to be bound by the Post-Petition Intercreditor Arrangement, and (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien Collateral Trustee, obligations of the Companies as applicable, not to object set forth herein are subject to the Post-Petition terms and conditions of the Intercreditor Arrangements and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments Agreement. Without limiting the foregoing, to the Prepetition Second Lien Documents) extent that any Company is required to effectuate the Post-Petition Intercreditor Arrangements.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount deliver, endorse, pay over or otherwise provide possession or control over any of the Prepetition Second Lien Notes.
(c) Notwithstanding anything collateral set forth herein to the contraryAdministrative Agent or Lenders hereunder, such obligations shall be subject to the Liens rights of the Revolving Credit Agent and Revolving Lenders to such collateral, subject to in the Intercreditor Agreement. Further, any representation, warranty or covenant by the Companies in this Agreement that the Collateral is not and shall not be subject to any liens, encumbrances or other restrictions, shall specifically be qualified by the liens and rights of the Revolving Credit Agent for the benefit of the Revolving Lenders with respect to the collateral pursuant to the Revolving Credit Documents and as set forth in the Intercreditor Agreement. The limitations and qualifications set forth in this paragraph are effective solely to recognize the rights and remedies of the Revolving Credit Agent and Revolving Lenders and to qualify the obligations of the Companies and shall not otherwise impair the pledge and security interests granted by the Companies to (i) the Administrative Agent pursuant to this Agreement Agreement. The parties acknowledge that to the extent that the obligations of the Companies to the Revolving Credit Agent and Revolving Lenders arising under the Revolving Credit Documents have been indefeasibly satisfied in full and such parties have no further obligations to make loans or any other Loan Documents advances to the Borrower thereunder, the limitations and qualifications set forth in this paragraph shall be of no further force or effect and the exercise of any right or remedy with respect Companies covenant to take all such actions set forth herein and necessary to give effect to the Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant to the Prepetition First Lien Credit Agreement or any other Prepetition First Lien Loan Document and the exercise provisions of any right or remedy with respect to the collateral by the Prepetition First Lien Agent thereunder, and (iii) the Prepetition Second Lien Collateral Trustee pursuant to the Prepetition Second Lien Credit this Agreement, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document and the exercise of any right or remedy with respect to the collateral by the Prepetition Second Lien Collateral Trustee thereunder, in each case, are subject to the terms of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms of the Post-Petition Intercreditor Arrangement and the Prepetition Intercreditor Agreement, the Loan Documents, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms of the Post-Petition Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents and the Prepetition Second Lien Notes Documents, as applicable.
(d) This Agreement is not intended to, and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement). [Signature Pages Follow]
Appears in 1 contract
Intercreditor Matters. (a) Each The Second Priority Collateral Agent hereby appoints the First Priority Collateral Agent as its agent with power and authority to accept, hold, administer and enforce, for the benefit of the Administrative Agent Second Priority Secured Parties, all interests, rights and Lenders, by delivering its signature page hereto shall be deemed to have remedies under any and all (i) acknowledged receipt of, consented to and approved and agreed to be bound Collateral in which the security interest is perfected by possession by the Post-Petition Intercreditor Arrangement, First Priority Collateral Agent and (ii) authorized and directed Investment Property with respect to which the Prepetition First Lien AgentPriority Collateral Agent is the registered owner. Upon the Discharge of First Priority Secured Obligations, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien First Priority Collateral Trustee, as applicable, not to object to the Post-Petition Intercreditor Arrangements and to perform its obligations thereunder and to execute and Agent shall deliver any documents or instruments all Collateral (including any amendments amounts then remaining in the Collateral Account) in its possession to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor ArrangementsPriority Collateral Agent.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” under First Priority Collateral Agent hereby acknowledges with respect to any existing and as defined future Collateral which it holds in its possession that it also holds such Collateral for the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of the Prepetition Second Lien NotesPriority Collateral Agent.
(c) Notwithstanding anything herein to the contrarycontrary contained herein, the Liens Second Priority Collateral Agent covenants, on behalf of each Second Priority Secured Party, that it shall not exercise any rights or remedies under this Agreement until following the Discharge of First Priority Secured Obligations and security interests granted agrees that the First Priority Collateral Agent, in its capacity as the Applicable Collateral Agent, shall not be required to exercise any remedy on behalf of or at the direction of any Second Priority Secured Party and that the only rights of the Second Priority Secured Parties is for the Second Priority Secured Obligations to be secured by a Lien on the Collateral, and to receive proceeds to the extent provided in Section 12.
(d) All of the First Priority Secured Obligations shall be deemed to have been made or incurred in reliance upon the provisions of this Section 15 and the Second Priority Col- lateral Agent, on behalf of each Second Priority Secured Party, expressly waives (i) notice of acceptance by any Second Priority Secured Party of this Agreement, (ii) notice of the Administrative existence or creation or non-payment of all or any part of the First Priority Secured Obligations, (iii) all diligence in collection or protection of or realization upon all or any part of the First Priority Secured obligations or any other security therefor and any requirement that the First Priority Collateral Agent or any other First Priority Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party.
(e) The Second Priority Collateral Agent, on behalf of each Second Priority Secured Party, hereby agrees and consents that the First Priority Secured Parties may, at any time and from time to time, in their sole discretion, without the consent of or notice to any Second Priority Secured Party (except to the extent such notice is specifically required pursuant to the provisions of this Agreement or under any mandatory provision of applicable law), without incurring responsibility to any Second Priority Secured Party, and without impairing or releasing the subordination provided for herein or the obligations of any Second Priority Secured Party to the First Priority Secured Parties hereunder, amend, restate, supplement or otherwise modify the Credit Agreement, any Loan Document or any Hedging Agreement in any way whatsoever, including, without limitation, the following: (i) shorten the final maturity of all or any part of the First Priority Secured Obligations, (ii) modify the amortization of the principal amount of all or any part of the First Priority Secured Obligations, (iii) increase the principal amount of the First Priority Security Obligations, or otherwise provide for additional advances, (iv) raise the standard or default per annum interest rates applicable to all or any part of the First Priority Secured Obligations, (v) impose any additional fees or penalties upon any Loan Party or increase the amount of or rate for any fees or penalties provided for in the Credit Agreement, Loan Documents or any Hedging Agreement, (vi) retain or obtain a Lien on any property to secure any of the First Priority Secured Obligations, (vii) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, all or any of the First Priority Secured Obligations or otherwise amend, restate, supplement or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the First Priority Secured Obligations or any of the Credit Agreement, the Loan Documents or any Hedging Agreement, (viii) retain or obtain the primary or secondary obligation of any other Loan Documents and the exercise of any right or remedy Person with respect to any of the First Priority Secured Obligations, (x) release any Person liable in any manner under or in respect of First Priority Secured Obligations or release or compromise any obligation of any nature of any Person with respect to any of the First Priority Secured Obligations, (x) sell, exchange, not perfect or otherwise deal with any property at any time pledged, assigned or mortgaged to secure or otherwise securing, all or any part of the First Priority Secured Obligations, (xi) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any First Priority Secured Obligations, or release, compromise, alter or exchange any obligations of any nature of any Person with respect to any such property, (xii) amend, or grant any waiver or release with respect to, or consent to any departure from, any guarantee for all or any of the First Priority Secured Obligations, (xiii) apply any sums from time to time received to the First Priority Secured Obligations in such manner such as such Person shall determine and (xvi) otherwise manage and supervise the First Priority Secured Obligations in accordance with such Person's usual practices, modified from time to time as such Person deems appropriate under the circumstances.
(f) In the event of any Proceeding involving Pledgor:
(i) Except as otherwise specifically permitted in this Section 15(d), until the First Priority Secured Obligations have been paid in full in cash, neither the Second Priority Collateral Agent nor any other Second Lien Secured Party shall assert, without the written consent of the First Priority Collateral Agent, any claim, motion, objection or argument in respect of the Collateral in connection with such Proceeding which could otherwise be asserted or raised in connection with such Proceeding by the Administrative Second Priority Secured Parties as secured creditors of Pledgor. Without limiting the generality of the foregoing, the Second Priority Collateral Agent, on behalf of each Second Priority Secured Party, agrees that the Second Priority Secured Party will (i) not object to or oppose a sale or other disposition of any Collateral free and clear of Liens or other claims of the Second Priority Secured Parties under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code or any other law applicable to such Proceeding if the Second Priority Collateral Agent hereunder has consented to such sale or disposition and thereunderthe respective interests of the Second Priority Secured Parties attach to the proceeds thereof, subject in any event to the provisions hereof, (ii) turn over to the First Priority Collateral Agent for the pro rata benefit of the First Priority Secured Parties any "adequate protection" of their interest in any Collateral that they receive in any Proceeding to the extent necessary to pay the First Priority Secured Obligations owed to the First Priority Secured Parties and (iii) not seek to have the automatic stay lifted with respect to any Collateral, to appoint a Chapter 11 trustee under Section 1104 of the Bankruptcy Code or to convert or dismiss such Proceeding under Section 1112 of the Bankruptcy Code, in each case without the prior written consent of the First Priority Collateral Agent; provided that if the First Priority Collateral Agent seeks such aforementioned relief, the Second Priority Secured Parties shall join in any such motion or application seeking such relief.
(ii) The First Priority Collateral Agent, on behalf of the First Priority Secured Parties, and the Second Priority Collateral Agent, on behalf of the Second Priority Secured Parties, each agrees not to, directly or indirectly, take any action or vote in any way that would be in violation of, or inconsistent with, or result in a breach of, this Agreement or challenge or contest (A) the validity, perfection, priority or enforceability of any Lien held by (x) the First Priority Collateral Agent to secure the payment, performance or observance of all or any part of the First Priority Secured Obligations or (y) the Second Priority Collateral Agent to secure the payment, performance or observance of all or part of the Second Priority Secured Obligations, (ii) the Prepetition First Lien rights of the Applicable Collateral Agent pursuant to the Prepetition First Lien Credit under this Agreement or any other Prepetition First Lien Loan Document and the exercise of any right or remedy with respect to the collateral by the Prepetition First Lien Agent thereunderany such Lien, and or (iii) the Prepetition Second Lien Collateral Trustee pursuant to validity or enforceability of this Agreement, the Prepetition Second Lien Credit Agreement, Prepetition Second Lien Notes any other Loan Document, the Indenture or any other Prepetition Second Lien Loan Document Note; provided that nothing in this Section 15 is intended or Prepetition Second Lien Notes Document shall be deemed or construed to limit in any way the ability of the parties hereto to enforce all of the terms and provisions of this Agreement.
(iii) Subject to the limitations set forth in this Agreement, the First Priority Collateral Agent and the exercise Second Priority Collateral Agent may file proofs of any right or remedy claim and other pleadings and motions with respect to any First Priority Secured Obligations, Sec- ond Priority Secured Obligations or the collateral Collateral in any Proceeding. If a proper proof of claim has not been filed by the Prepetition Second Priority Collateral Agent in the form required in such Proceeding at least ten (10) days prior to the expiration of the time for filing thereof, the Applicable Collateral Agent shall have the right (but not the duty) to file an appropriate claim for and on behalf of the Second Priority Secured Parties with respect to any of the Second Priority Secured Obligations or any of the Collateral. In furtherance of the foregoing, the Second Priority Collateral Agent, on behalf of the Second Priority Secured Parties, hereby appoints the First Priority Collateral Agent, for so long as it is the Applicable Collateral Agent, as its attorney-in-fact, with full authority in the place and stead of the Second Priority Collateral Agent and full power of substitution and in the name of the Second Priority Collateral Agent or otherwise, to execute and deliver any document or instrument that the Second Priority Collateral Agent is required or permitted to deliver pursuant to this clause (e), such appointment being coupled with an interest and irrevocable.
(iv) The Second Priority Collateral Agent shall execute and deliver to the Applicable Collateral Agent all such instruments and other documentation confirming the above authorizations and all such proofs of claim, assignments of claim and other instruments and documentation, and shall take all such other action as may be reasonably requested by the Applicable Collateral Agent to enforce such claims and carry out the intent of this Section 15.
(v) To the extent that any First Priority Secured Party receives payments (whether in cash, property or securities) on the First Priority Secured Obligations or proceeds of the Collateral which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the First Priority Secured Obligations, or part thereof, intended to be satisfied shall be revived and continue in full force and effect as if such payments or proceeds had not been received by such First Lien Collateral Trustee thereunderSecured Party.
(vi) Notwithstanding any other provision of this Section 15, (i) the Second Priority Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Collateral, if any, and (ii) the Second Priority Secured Parties shall be entitled to file any proof of claim and other filings and make any arguments and motions that are, in each case, are subject to in accordance with the terms of this Agreement and necessary to preserve their rights, in accordance with the Post-Petition Intercreditor Arrangementterms of this Agreement, with respect to the Second Priority Secured Obligations and the Collateral; provided that notice of intent to take any such action shall be given by the Second Priority Secured Parties to the First Priority Collateral Agent not less than the earlier of (x) ten business days prior to the taking of such action and (y) five business days less than the number of days available by order of any applicable bankruptcy court in which to file a claim.
(g) In the event that any proceeds of Collateral are received by any Second Priority Secured Party for application to the Second Priority Secured Obligations in contravention of Section 12, any such proceeds shall be received and held in trust for the First Priority Secured Parties and shall be paid over or delivered in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct, to the First Priority Collateral Agent for the benefit of the First Priority Secured Parties to the extent necessary to pay in full in cash all First Priority Secured Obligations in accordance with their terms. In the event the Second Priority Secured Parties fail to provide any endorsement, as contemplated by the immediately preceding sentence, the First Priority Collateral Agent, or any of any conflict between its officers or employees, is hereby irrevocably authorized to make the terms same (which authorization, being coupled with an interest, is irrevocable). Upon indefeasible payment in full in cash of all First Priority Secured Obligations and Discharge of the Post-Petition Intercreditor Arrangement First Priority Secured Obligations, any remaining proceeds of Collateral shall be delivered to the Second Priority Collateral Agent for application to the Second Priority Secured Obligations in accordance with Section 12, except as otherwise required pursuant to applicable law.
(h) The First Priority Collateral Agent (subject to the proviso below) shall have the right in accordance with applicable laws and this Agreement to enforce the Prepetition Intercreditor provisions of this Agreement (i) by judicial proceedings for the enforcement of the Liens on the Collateral, (ii) by the sale of the Collateral or any part thereof, (iii) otherwise by the exercise of the power of entry or sale or other right granted under this Agreement or (iv) by taking any other enforcement action against, or exercising any other remedies with respect to, the Collateral; provided that the Second Priority Secured Parties shall not have any of the rights or powers specified above in this clause (e) until the Discharge of First Priority Secured Obligations has occurred, whereupon the Required Second Lien Lenders shall have the exclusive right to act on behalf of the Second Lien Secured Parties to exercise the rights or powers specified in this Section 15(h). Except as the same relates to the Collateral or as otherwise expressly prohibited by this Agreement, the Lenders may exercise any right or power, enforce any remedy, give any direction, consent or waiver or make any determination, under or in respect of any provision of any Loan Documents, Documents to which it is a party.
(i) The provisions of this Section 15 are and are intended solely for the Prepetition First Lien Loan Documents, purpose of defining the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms relative rights of the Post-Petition Intercreditor Arrangement First Priority Secured Parties on the one hand and the Second Priority Secured Parties on the other hand. Pledgor shall govern and controlnot have any rights under this Section 15. Each Nothing contained in this Section 15 or elsewhere in this Agreement is intended to or shall impair the obligations of the Secured Parties Pledgor hereunder, which are absolute and unconditional.
(in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties)j) The Second Priority Collateral Agent, on behalf of itself and its Affiliatesthe Second Priority Secured Parties, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents and the Prepetition Second Lien Notes Documents, as applicable.
(d) This Agreement is not intended to, and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement). [Signature Pages Follow]ack
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Sources: Pledge and Guarantee Agreement (Consolidated Communications Texas Holdings, Inc.)
Intercreditor Matters. (a) Reference is made to the ABL Intercreditor Agreement, dated as of the date hereof (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the “Intercreditor Agreement”), among Deutsche Bank AG New York Branch, as ABL Agent for the ABL Secured Parties referred to therein, Barclays Bank PLC, as Term Loan Agent for the Term Loan Secured Parties referred to therein, each Additional Debt Agent for the Additional Debt Secured Parties referred to therein, MKS Instruments, Inc. and the other Grantors party thereto. Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement, (ii) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement, and (iii) authorizes (or is deemed to authorize) the Administrative Agent and Lendersthe Collateral Agent to, by delivering its signature page hereto on behalf of such Person, enter into, and perform under, the Intercreditor Agreement as “ABL Agent”, “Term Loan Agent” or “Additional Debt Agent”. Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.
(b) Notwithstanding any provision of any Loan Document to the contrary, for purposes of any determination relating to the CF Debt Priority Collateral (as defined in the Intercreditor Agreement) as to which the Collateral Agent is granted discretion hereunder or under any other Loan Document, the Collateral Agent shall be deemed to have (i) acknowledged receipt of, consented to agreed and approved and agreed to be bound accepted any determination in respect thereof by the Post-Petition Intercreditor Arrangement, and Controlling CF Debt Agent (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien Collateral Trustee, as applicable, not to object to the Post-Petition Intercreditor Arrangements and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor Arrangements.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of Intercreditor Agreement) under the Prepetition Second Lien NotesCF Debt Facility.
(c) Notwithstanding anything herein to the contrary, the Liens and security interests granted to (i) the Administrative Agent pursuant to contrary contained in this Agreement or any other Loan Documents and Document, to the exercise extent the provisions of this Agreement (or any right other Collateral Documents) require the delivery of, or remedy with respect control over, CF Debt Priority Collateral to be granted to the Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant at any time prior to the Prepetition First Lien Credit Agreement discharge of obligations under the CF Debt Facility, then delivery of such CF Debt Priority Collateral (or any other Prepetition First Lien Loan Document and the exercise of any right or remedy control with respect thereto) shall instead be made to the collateral by the Prepetition First Lien Controlling CF Debt Agent thereunder, and (iii) the Prepetition Second Lien Collateral Trustee pursuant to the Prepetition Second Lien Credit Agreement, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document and the exercise of any right or remedy with respect to the collateral by the Prepetition Second Lien Collateral Trustee thereunder, in each case, are subject to the terms of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms of the Post-Petition Intercreditor Arrangement and the Prepetition Intercreditor Agreement, the Loan Documents, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms of the Post-Petition Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents and the Prepetition Second Lien Notes Documents, as applicable.
(d) This Agreement is not intended to, and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement), to be held in accordance with the CF Debt Documents (as defined in the Intercreditor Agreement) and the Intercreditor Agreement, each applicable Grantor’s obligations hereunder or in any other Loan Document (including the representations and warranties made by it hereunder and in the other Loan Documents) with respect to such delivery shall be deemed satisfied by the delivery to the Controlling CF Debt Agent (as defined in the Intercreditor Agreement), acting as a gratuitous bailee of the Collateral Agent. Furthermore, at all times prior to the discharge of the Obligations under the CF Debt Facility, the Collateral Agent is authorized by the parties hereto to effect transfers of such Collateral at any time in its possession (and any “control” or similar agreements with respect to such Collateral) to the Controlling CF Debt Agent (as defined in the Intercreditor Agreement). [Signature Pages Follow]Table of Contents Table of Contents
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Intercreditor Matters. (a) Reference is made to the ABL Intercreditor Agreement, dated as of the date hereof (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the “Intercreditor Agreement”), among Deutsche Bank AG New York Branch, as ABL Agent for the ABL Secured Parties referred to therein, Barclays Bank PLC, as Term Loan Agent for the Term Loan Secured Parties referred to therein, each Additional Debt Agent for the Additional Debt Secured Parties referred to therein, MKS Instruments, Inc. and the other Grantors party thereto. Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement, (ii) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement, and (iii) authorizes (or is deemed to authorize) the Administrative Agent and Lendersthe Collateral Agent to, by delivering its signature page hereto on behalf of such Person, enter into, and perform under, the Intercreditor Agreement as “ABL Agent”, “Term Loan Agent” or “Additional Debt Agent”. Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.
(b) Notwithstanding any provision of any Loan Document to the contrary, for purposes of any determination relating to the ABL Priority Collateral (as defined in the Intercreditor Agreement) as to which the Collateral Agent is granted discretion hereunder or under any other Loan Document, the Collateral Agent shall be deemed to have (i) acknowledged receipt of, consented to agreed and approved and agreed to be bound accepted any determination in respect thereof by the Post-Petition Intercreditor Arrangement, and ABL Agent (ii) authorized and directed the Prepetition First Lien Agent, the Prepetition Second Lien Administrative Agent, the Prepetition Second Lien Notes Trustee and the Prepetition Second Lien Collateral Trustee, as applicable, not to object to the Post-Petition Intercreditor Arrangements and to perform its obligations thereunder and to execute and deliver any documents or instruments (including any amendments to the Prepetition Second Lien Documents) to effectuate the Post-Petition Intercreditor Arrangements.
(b) The Tranche B Lenders party hereto constitute “Required Lenders” under and as defined in the Prepetition Second Lien Credit Agreement and hold more than 66.66% in amount of Intercreditor Agreement) under the Prepetition Second Lien NotesABL Facility.
(c) Notwithstanding anything herein to the contrary, the Liens and security interests granted to (i) the Administrative Agent pursuant to contrary contained in this Agreement or any other Loan Documents and Document, to the exercise extent the provisions of this Agreement (or any right other Collateral Documents) require the delivery of, or remedy with respect control over, ABL Priority Collateral to be granted to the Collateral by the Administrative Agent hereunder and thereunder, (ii) the Prepetition First Lien Agent pursuant at any time prior to the Prepetition First Lien Credit Agreement discharge of obligations under the ABL Facility, then delivery of such ABL Priority Collateral (or any other Prepetition First Lien Loan Document and the exercise of any right or remedy control with respect thereto) shall instead be made to the collateral by the Prepetition First Lien ABL Agent thereunder, and (iii) the Prepetition Second Lien Collateral Trustee pursuant to the Prepetition Second Lien Credit Agreement, Prepetition Second Lien Notes Indenture or any other Prepetition Second Lien Loan Document or Prepetition Second Lien Notes Document and the exercise of any right or remedy with respect to the collateral by the Prepetition Second Lien Collateral Trustee thereunder, in each case, are subject to the terms of the Post-Petition Intercreditor Arrangement. In the event of any conflict between the terms of the Post-Petition Intercreditor Arrangement and the Prepetition Intercreditor Agreement, the Loan Documents, the Prepetition First Lien Loan Documents, the Prepetition Second Lien Loan Documents, Prepetition Second Lien Notes Documents, the terms of the Post-Petition Intercreditor Arrangement shall govern and control. Each of the Secured Parties (in their capacities as such and in their respective capacities, as applicable, as Prepetition Secured Parties), on behalf of itself and its Affiliates, hereby agrees that it shall not (1) take any position in any action, suit, or proceeding (or support any other Person taking such position) that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements or (2) take any action hereunder that is inconsistent with or would otherwise contravene the Post-Petition Intercreditor Arrangements, and such agreements shall be binding on their and their Affiliates’ respective successors and assigns hereunder and under any of the Prepetition First Lien Loan Documents, Prepetition Second Lien Loan Documents and the Prepetition Second Lien Notes Documents, as applicable.
(d) This Agreement is not intended to, and shall not, constitute a First Lien Credit Agreement and/or a Second Lien Credit Agreement (as defined in the Prepetition Intercreditor Agreement), to be held in accordance with the Loan Documents (as defined in the ABL Credit Agreement) and the Intercreditor Agreement, each applicable Grantor’s obligations hereunder or in any other Loan Document (including the representations and warranties made by it hereunder and in the other Loan Documents) with respect to such delivery shall be deemed satisfied by the delivery to the ABL Agent (as defined in the Intercreditor Agreement), acting as a gratuitous bailee of the Collateral Agent. [Signature Pages Follow]Furthermore, at all times prior to the discharge of the Obligations under the ABL Facility, the Collateral Agent is authorized by the parties hereto to effect transfers of such Collateral at any time in its possession (and any “control” or similar agreements with respect to such Collateral) to the ABL Agent (as defined in the Intercreditor Agreement).
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