Permitted Actions. (a) Notwithstanding Section 3.1(a), and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL Obligations or the ABL Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of a Term Loan Obligation or a Lien securing the Term Loan Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred. (b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, any Claimholder may:
(a) Notwithstanding Section 3.1(a), and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Obligations and the Term Loan Priority Collateral in any if an Insolvency Proceeding has been commenced by or against any Obligor; Grantor, file a claim or statement of interest with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term Loan Claimholder, the Term Loan Debt, and in each case the Collateral securing such Debt;
(b) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Collateral securing held by the ABL Obligations Priority Agent with respect thereto, or the ABL Creditors’ rights of the Priority Agent or any other Priority Claimholder to exercise remedies undertake Enforcement Actions with respect thereto) in order to create or otherwise not perfect its Lien in accordance with this Agreement; and to the Collateral;
(c) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding, or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of (i) in the case of a claim of an ABL Claimholder, the ABL Claimholders, or (ii) in the case of a claim of a Term Loan Obligation or a Lien securing Claimholder, the Term Loan Obligations; Claimholders, in each case including any claims secured by the Collateral, if any;
(d) vote on any plan of reorganization and make any filings and motions that are, in each case, not in contravention of the provisions of this Agreement, with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term Loan Claimholder, the Term Loan Debt, and (in each case) the Collateral;
(e) join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the ABL Priority Collateral of the Priority Agent initiated by the ABL Agent, such Priority Agent to the extent that any such action could not reasonably be expected expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere materially with an Enforcement Action by such Priority Agent (it being understood that neither the Enforcement Action, but no Term Loan Creditor may Junior Agent nor any Junior Claimholder shall be entitled to receive any Proceeds thereof proceeds from the Priority Collateral unless otherwise expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; ;
(f) accelerate take any Term Loan Obligations action described in accordance with clauses (i) through (viii) in the provisions proviso to the definition of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws)Enforcement Action; and and
(g) seek adequate protection during an Insolvency Proceeding exercise rights and remedies as unsecured creditors to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred3.7.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Sources: Intercreditor Agreement (Unifi Inc)
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, each of Notes Agent and ABL Agent may:
(a) Notwithstanding Section 3.1(a)if an Insolvency Proceeding has been commenced by or against any Grantor, and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject interest with respect to Section 6.9, on a plan of reorganization (including a vote to accept its Collateral or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, otherwise with respect to the Term Loan Notes Obligations and or the Term Loan Priority Collateral in ABL Obligations, as the case may be, or otherwise file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of such Grantor arising under any Insolvency Proceeding commenced by or against any Obligor; applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement or applicable law (including the Bankruptcy Laws);
(b) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Collateral securing of the ABL Obligations other, or the ABL Creditors’ rights of the other Agent or any Claimholders to exercise remedies Exercise any Secured Creditor Remedies) in order to create or otherwise not perfect its Lien in accordance with this Agreement; and to the Collateral;
(c) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance or subordination of a Term Loan Obligation its claims or a Lien securing the Term Loan Obligations; claims of its Claimholders, or the avoidance of its Liens;
(d) object to any proposed acceptance of, in the case of Notes Agent, ABL Priority Collateral by an ABL Claimholder pursuant to Section 9-620 of the UCC;
(e) make any arguments and motions that are, in each case, in accordance with the terms of this Agreement;
(f) vote on any plan of reorganization in accordance with the terms of this Agreement;
(g) the Notes Agent may join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the ABL Priority Collateral initiated by the ABL Agent, Agent to the extent that any such action could not reasonably be expected expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere materially with the Enforcement ActionExercise of Secured Creditor Remedies by such ABL Agent (it being understood that, but no Term Loan Creditor may (i) with respect to ABL Priority Collateral, neither Notes Agent nor any other Notes Claimholder shall be entitled to receive any Proceeds proceeds thereof unless otherwise expressly permitted herein and (ii) with respect to Notes Priority Collateral, neither ABL Agent nor any other ABL Claimholder shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and and
(gh) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, take any action described in the case of each of clauses (ai) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1viii) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event definition of Default shall have occurred and be continuing (both before and after giving effect to the payment Exercise of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurredSecured Creditor Remedies.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, any Claimholder may:
(a) Notwithstanding Section 3.1(a), and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Obligations and the Term Loan Priority Collateral in any if an Insolvency Proceeding has been commenced by or against any Obligor; Grantor, file a claim or statement of interest with respect to any Debt and the Collateral securing such Debt;
(b) take any action in order to create, perfect, preserve, perfect or protect (but not enforce) preserve its Lien on in and to the ABL Priority Collateral, so long as such actions are not adverse to prevent the priority status in accordance with this Agreement running of Liens any applicable statute of limitation or similar restriction on the ABL Priority Collateral securing the ABL Obligations claims or the ABL Creditors’ rights to exercise remedies assert a compulsory cross-claim or otherwise not in accordance with this Agreement; counterclaim against any Person;
(c) before or after the commencement of an Insolvency Proceeding, file any necessary responsive or defensive pleadings (i) in opposition to a claim any motion, claim, adversary proceeding, or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of (A) in the case of a claim of an ABL Claimholder, the ABL Claimholders, or (B) in the case of a claim of a Term Loan Obligation or a Lien securing Claimholder, the Term Loan Obligations; Claimholders, or (ii) asserting rights available to unsecured creditors of the applicable Grantor, in each case in accordance with and not in contravention of the terms of this Agreement;
(d) during an Insolvency Proceeding, vote on any plan of reorganization, scheme or arrangement, or liquidation (or similar arrangement affecting creditors’ rights generally) and make any filings and motions therein that are, in each case, not in contravention of the provisions of this Agreement, with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term Loan Claimholder, the Term Loan Debt, and (in each case) the Collateral;
(e) in the case of a Junior Agent, join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the ABL Priority Collateral of the Priority Agent initiated by the ABL Agent, such Priority Agent to the extent that any such action could not reasonably be expected expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere materially with an Enforcement Action by such Priority Agent (it being understood that neither the Enforcement Action, but no Term Loan Creditor may Junior Agent nor any Junior Claimholder shall be entitled to receive any Proceeds thereof from the Priority Collateral unless otherwise expressly permitted herein; );
(ef) bid subject to Section 3.6(a), inspect, appraise or value the Collateral (and to engage or retain investment bankers or appraisers for the purposes of appraising or purchase valuing the Collateral) or to receive information or reports concerning the Collateral, in each case pursuant to the terms of the ABL Priority Collateral at any publicDocuments or Term Loan Documents, privateas applicable, or judicial foreclosure upon such applicable law;
(g) subject to Section 3.6(a), take any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not to violate or breach) an obligation under the ABL Priority Collateral initiated by any ABL CreditorDocuments or Term Loan Documents, or any sale of ABL Priority Collateral during an Insolvency Proceedingas applicable; provided that such bid may action does not include any action by a “credit Junior Claimholder to seek specific performance or injunctive relief against any Priority Claimholder or the Disposition of any such Priority Claimholder’s Priority Collateral in contravention of the other provisions of this Agreement;
(h) bid for Collateral at any public or private sale thereof, provided that (i) such Claimholder does not challenge the bid of the Priority Agent for its Priority Collateral other than by the submission of a competing cash bid” , (ii) each Priority Lender may subject to the terms of its Collateral Documents offset its Priority Debt against the purchase price for the Priority Collateral and (iii) if such sale includes Junior Collateral and Priority Collateral, the Junior Lenders may only bid cash with respect to the Priority Collateral; provided, that the cash portion of any such bid need not exceed the amount of the ABL Priority Debt or the Term Loan Priority Debt, as applicable, in respect of such Priority Collateral; and
(i) enforce the terms of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations subordination agreement with any Person (other than the Excess ABL Obligationsa Grantor) and are applied with respect to cause such Discharge debt of a Grantor that is subordinated to the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of Debt or the Term Loan Documents Debt provided (except for acceleration which occurs automatically and without i) prior written notice under the Term Loan Documents of such action is provided to each Agent, (ii) no such action includes any Enforcement Action, (iii) any payment or other property received by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding such Claimholder, to the extent expressly permitted by Section 6resulting from a payment or other transfer of property or an interest in property of any Grantor, in the case shall be deemed to be Proceeds of each of clauses (a) through (g), in a manner not inconsistent with Collateral subject to the other terms of this Agreement. Except as expressly provided for hereinAgreement and (iv) any other payments received by such Claimholder in connection with such action shall otherwise be subject to the terms of such subordination agreement with any other Person, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect any related subordination agreement with either or both of the Term Loan Obligations so long as (A) no Event of Default shall have occurred Agents and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Sources: Intercreditor Agreement (Quest Resource Holding Corp)
Permitted Actions. (a) Notwithstanding Section 3.1(a)Nothing in this Agreement shall be construed to limit or impair in any way the right of each Second Lien Secured Party and each Third Lien Secured Party to, and subject to Section 2.1, a Term Loan Creditor may as applicable: (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Second Lien Obligations and under its Second Lien Debt Facility or the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any ObligorThird Lien Obligations under its Third Lien Debt Facility; (b) take action to createin the case of any Second Lien Secured Party, perfect, preserve, or protect join (but not enforcecontrol) its any foreclosure or other judicial lien enforcement proceeding with respect to the Collateral initiated by any First Lien Secured Creditor, in each case, for the sole purpose of protecting such Second Lien Secured Party’s Lien on the ABL Priority such Collateral, so long as to the extent such actions are action (i) in the case of joining a foreclosure or other judicial lien enforcement proceeding, would not reasonably be expected to interfere materially with such proceeding and (ii) is not adverse to the priority status in accordance with this Agreement of the First Priority Liens on the ABL Priority such Collateral securing the ABL Obligations or the ABL Creditors’ rights of the First Lien Collateral Agent or any other First Lien Secured Party hereunder, including the right to exercise remedies in respect thereof; (c) in the case of any Third Lien Secured Party, join (but not control) any foreclosure or other judicial lien enforcement proceeding with respect to the Collateral initiated by any First Lien Secured Creditor or Second Lien Secured Creditor or take any other action, in each case, for the sole purpose of protecting such Third Lien Secured Party’s Lien on such Collateral, to the extent such action (i) in the case of joining a foreclosure or other judicial lien enforcement proceeding, would not reasonably be expected to interfere materially with such proceeding and (ii) is not adverse to the priority status of the First Priority Liens and the Second Priority Liens on such Collateral or the rights of the First Lien Collateral Agent or any other First Lien Secured Party or the Second Lien Collateral Agent or any other Second Lien Secured Party hereunder, including the rights to exercise remedies or otherwise not in accordance with this Agreementrespect thereof; (cd) in the case of the Second Lien Secured Parties, receive any Collateral or proceeds of Collateral on account of (i) its Second Priority Lien Obligations after the Discharge of First Lien Priority Obligations has occurred, subject to any reinstatement of the First Lien Priority Obligations under Section 6.04 or (ii) its Excess Second Lien Obligations after the Discharge of Excess First Lien Obligations has occurred, subject to any reinstatement of the Excess First Lien Obligations under Section 6.04; (e) in the case of the Third Lien Secured Parties, receive any Collateral or proceeds of Collateral after the Discharge of First Lien Obligations has occurred and the Discharge of Second Lien Obligations has occurred, subject to any reinstatement of the First Lien Obligations and/or the Second Lien Obligations under Section 6.04; (f) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of a Term Loan Obligation the claims of the Second Lien Secured Parties or a Third Lien securing Secured Parties, as applicable, including any claims secured by the Term Loan ObligationsCollateral; (g) vote on any plan of reorganization, make other filings and make any arguments and motions that, in each case, do not contravene the terms of this Agreement, including, without limitation, Sections 6.05(c) and (d); (h) join (but not exercise bid at any control over) a judicial foreclosure Section 363 hearing or Lien enforcement proceeding with respect to any other Collateral disposition; provided that (i) in the ABL case of the Second Lien Secured Parties (x) prior to the Discharge of First Lien Priority Collateral initiated by Obligations, such bid results in the ABL AgentDischarge of First Lien Priority Obligations as a condition to such disposition and concurrently with the consummation thereof, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL First Lien Obligations has not previously occurred, (other than y) after the Excess ABL Obligations) and are applied to cause such Discharge of First Lien Priority Obligations and prior to the ABL Discharge of Excess First Lien Obligations, such bid results in the Discharge of Excess First Lien Obligations as a condition to such disposition and concurrently with the consummation thereof and (ii) in the case of the Third Lien Secured Parties, such bid results in the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations as a condition to such disposition and concurrently with the consummation thereof, to the extent that the Discharge of First Lien Obligations or the Discharge of Second Lien Obligations has not previously occurred; (i) accelerate the maturity of, or demand as immediately due and payable, all or any part of the Second Lien Obligations or Third Lien Obligations; (j) commence, continue or participate in any judicial, arbitral or other than proceeding (whether under state, local, federal or foreign law) against any Credit Party (including any Insolvency or Liquidation Proceeding) to enforce any of the Excess ABL Obligations)payment obligations of any Credit Party, under or in connection with the Second Lien Obligations or the Second Lien Debt Documents or the Third Lien Obligations or the Third Lien Debt Document, in each case, so long as such action is not otherwise for the enforcement of any Lien in, or otherwise seeks possession of, any of the Collateral or any Proceeds thereof; (k) charge interest at the closing default rate pursuant to the terms of the sale based on such bidSecond Lien Debt Documents or the Third Lien Debt Documents; (fl) accelerate deliver any Term Loan Obligations in accordance with the provisions notice of default or event of default under any of the Term Loan Second Lien Debt Documents or the Third Lien Debt Documents; (except m) institute or maintain any suit or action solely to prevent the running of any applicable statute of limitation or any other similar restriction on claims; (n) assert a compulsory crossclaim or counterclaim against any of the Credit Parties as long as such action is not otherwise for acceleration which occurs automatically the enforcement against any of the Collateral; (o) institute or maintain any action to seek and without notice obtain specific performance or injunctive relief to compel the Credit Parties to comply with (or not violate or breach) an obligation under the Term Loan Documents Second Lien Debt Documents, as long as such action is not otherwise an enforcement action against or by operation in respect of Bankruptcy Laws)the Collateral; and (gp) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g)the Second Lien Secured Parties, in a manner not inconsistent with enforce the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed Agreement or any subordination agreement with regards to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and any indebtedness or other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect obligation subordinated to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Second Lien Obligations (other than including the Excess ABL Third Lien Obligations); (q) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period receive and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, voteretain Permitted Reorganization Securities, subject to Section 6.9, on a plan of reorganization 6.10; and/or (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral r) act in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long capacity as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, unsecured creditor to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred5.04.
Appears in 1 contract
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, each of Notes Agent and ABL Agent may:
(a) Notwithstanding Section 3.1(a)if an Insolvency Proceeding has been commenced by or against any Grantor, and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject interest with respect to Section 6.9, on a plan of reorganization (including a vote to accept its Collateral or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, otherwise with respect to the Term Loan Notes Obligations and or the Term Loan Priority Collateral in ABL Obligations, as the case may be, or otherwise file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of such Grantor arising under any Insolvency Proceeding commenced by or against any Obligor; applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement or applicable law (including the Bankruptcy Laws);
(b) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Collateral securing of the ABL Obligations other, or the ABL Creditors’ rights of the other Agent or any Claimholders to exercise remedies Exercise any Secured Creditor Remedies) in order to create or otherwise not perfect its Lien in accordance with this Agreement; and to the Collateral;
(c) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance or subordination of a Term Loan Obligation its claims or a Lien securing the Term Loan Obligations; claims of its Claimholders, or the avoidance of its Liens;
(d) object to any proposed acceptance of (i), in the case of Notes Agent, ABL Priority Collateral by an ABL Claimholder pursuant to Section 9-620 of the UCC and (ii) in the case of ABL Agent, Notes Priority Collateral by a Notes Claimholder pursuant to Section 9-620 of the UCC;
(e) make any arguments and motions that are, in each case, in accordance with the terms of this Agreement;
(f) vote on any plan of reorganization in accordance with the terms of this Agreement;
(g) the Notes Agent may join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the ABL Priority Collateral of the other Agent initiated by the such otherthe ABL Agent, Agent to the extent that any such action could not reasonably be expected expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere materially with the Enforcement ActionExercise of Secured Creditor Remedies by such otherABL Agent (it being understood that, but no Term Loan Creditor may (i) with respect to ABL Priority Collateral, neither Notes Agent nor any other Notes Claimholder shall be entitled to receive any Proceeds proceeds thereof unless otherwise expressly permitted herein and (ii) with respect to Notes Priority Collateral, neither ABL Agent nor any other ABL Claimholder shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and and
(gh) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, take any action described in the case of each of clauses (ai) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1viii) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event definition of Default shall have occurred and be continuing (both before and after giving effect to the payment Exercise of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurredSecured Creditor Remedies.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. (a) Notwithstanding Section 3.1(a), and subject anything in this Agreement to Section 2.1the contrary, a Term Loan Second Lien Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, vote on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Second Lien Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL First Lien Obligations or the ABL First Lien Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of a Term Loan Second Lien Obligation or a Lien securing the Term Loan ObligationsSecond Lien Obligation; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the ABL Priority Collateral initiated by the ABL First Lien Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Second Lien Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL First Lien Creditor or, if the conditions set forth in Section 3.1(b) are satisfied, any Second Lien Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Second Lien Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL First Lien Obligations (other than the Excess ABL Obligations) and are applied to cause such the Discharge of the ABL Obligations (other than the Excess ABL First Lien Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Second Lien Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws)Second Lien Documents; and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), ) in a manner not inconsistent in violation with the other terms of this Agreement; (h) take and maintain any action against any Obligor for specific performance or injunctive relief to compel an Obligor to comply with (or not violate or breach) an obligation under the Second Lien Documents, provided that any such action does not require the making of any payments on the Second Lien Obligations or include any action to enjoin or otherwise interfere, hinder or delay a Disposition of Collateral with respect to which the Liens securing the Second Lien Obligations are required to be released pursuant to the terms of this Agreement; (i) take and maintain any action against any Obligor to prevent the expiration of, any applicable statute of limitations or similar permanent restriction on claims, or to assert a crossclaim, counterclaim or comparable claim against any Obligor or to file any defensive pleading; or (j) make demand for payment of, and pursue legal action to collect (that are not taken in the capacity of a secured creditor and do not involve enforcement of any Lien) any Second Lien Obligation. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a the Borrower of interest, regularly scheduled principal payments principal, interest and other amounts owed in respect of the Term Loan Second Lien Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurrednot permitted hereunder.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Sources: Intercreditor Agreement (Spinal Elements Holdings, Inc.)
Permitted Actions. Section 12.1(b) shall not be construed to limit or impair in any way any right of: (a) Notwithstanding Section 3.1(aany Lender to bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the Trustee upon the instruction of any Lender, or at any sale of Collateral during an Insolvency Proceeding (provided that no such bid may include a “credit bid” in respect of the Class B Obligations unless the proceeds of such bid are otherwise sufficient to enable the Class A Obligations to be paid in full), and subject (b) any Class B Lender to Section 2.1file any responsive or defensive pleadings in opposition to any motion, a Term Loan Creditor may claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Class B Lenders including any claims secured by the Collateral to the extent not in contravention of the terms of this Agreement, (ac) any Class B Lender to exercise any rights or remedies or file a proof any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of claim or statement the Borrower under applicable law, in each case, to the extent not in contravention of interestthe terms of this Agreement, vote, subject (d) any Class B Lender to Section 6.9, vote on a any plan of reorganization or file any proof of claim, (including a vote e) any Class B Lender to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extensiondirect the Trustee to take an Enforcement Action to the extent permitted under Section 12.1(b), and make other filings, arguments(f) any Class B Lender to receive Proceeds of Collateral in accordance with Section 2.7 or 2.8, and motions(g) any Class B Lender, with respect to the Term Loan Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action of the Borrower, the Loan Manager, the OFS Parent or any Seller, to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL Obligations or the ABL Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance statement of a Term Loan Obligation or a Lien securing the Term Loan Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding interest with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Class B Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, any Claimholder may:
(ai) Notwithstanding Section 3.1(a)if an Insolvency Proceeding has been commenced by or against any Grantor, and subject to Section 2.1, a Term Loan Creditor may (a) file a claim, proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, interest with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term Claimholder, the Term Loan Obligations Debt, and in each case, subject in all respects to this Agreement, the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; securing such Debt;
(bii) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Collateral securing held by the ABL Obligations Priority Agent with respect thereto, or the ABL Creditors’ rights of the Priority Agent or any other Priority Claimholder to exercise remedies undertake Enforcement Actions with respect thereto) in order to create or otherwise not perfect its Lien in accordance with this Agreement; and to the Collateral;
(ciii) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of (i) in the case of a claim of an ABL Claimholder in respect of the ABL Debt, the ABL Claimholders, or (ii) in the case of a claim of a Term Loan Obligation or a Lien securing Claimholder in respect of the Term Loan Obligations; Debt, the Term Claimholders, in each case including any claims secured by the Collateral, if any, in each case, in accordance with the express provisions of this Agreement;
(div) vote on any plan of reorganization and make any filings and motions that are, in each case, not in contravention of the express provisions of this Agreement, with respect to (A) in the case of an ABL Claimholder, the ABL Debt, and (B) in the case of a Term Claimholder, the Term Debt, and (in each case) the Collateral;
(v) join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the Priority Collateral of - 28 - WEIL:\96331350\2\35899.0561 the Priority Agent initiated by such Priority Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an Enforcement Action by such Priority Agent (it being understood that neither the Junior Agent nor any Junior Claimholder shall be entitled to receive any proceeds from the Priority Collateral unless otherwise expressly permitted herein);
(vi) the Term Agent or any Term Claimholder may exercise any of its rights or remedies with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions Term Documents after the termination of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding ABL Priority Standstill Period to the extent expressly permitted by Section 6, in the case of each of clauses 3.1 above; and
(a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (Bvii) the receipt thereof is not the direct ABL Agent or indirect result any ABL Claimholder may exercise any of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting its rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions ABL Documents after the termination of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding Term Priority Standstill Period to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred3.2 above.
Appears in 1 contract
Permitted Actions. Section 12.2(b) shall not be construed to limit or impair in any way any right of: (a) Notwithstanding Section 3.1(aany Lender to bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the Trustee upon the instruction of the Controlling Lender, or at any sale of Collateral during an Insolvency Proceeding (provided that no such bid may include a “credit bid” in respect of the Class B Obligations unless the proceeds of such bid are otherwise sufficient to enable the Class A Obligations to be paid in full), and subject (b) any Class B Lender to Section 2.1file any responsive or defensive pleadings in opposition to any motion, a Term Loan Creditor may claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Class B Lenders including any claims secured by the Collateral to the extent not in contravention of the terms of this Agreement, (ac) any Class B Lender to exercise any rights or remedies or file a proof any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of claim or statement the Borrower under applicable law, in each case, to the extent not in contravention of interestthe terms of this Agreement, vote, subject (d) any Class B Lender to Section 6.9, vote on a any plan of reorganization or file any proof of claim, (including a vote e) any Class B Lender to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extensiondirect the Trustee to take an Enforcement Action to the extent permitted under Section 12.2(b), and make other filings(f) any Class B Lender to receive Proceeds of Collateral in accordance with Section 2.7 or 2.8, arguments(g) any Class B Lender, and motions, with respect to the Term Loan Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to createof the Borrower, perfectthe Servicer, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL Obligations Equityholder or the ABL Creditors’ rights Originator, to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance statement of a Term Loan Obligation or a Lien securing the Term Loan Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding interest with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Class B Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1h) no provision hereof shall be construed any Class B Lender to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment)exercise its purchase rights under Article IX or Section 12.3, and (Bi) the receipt thereof is not the direct or indirect result of Borrower to exercise its purchase rights under Section 12.4; provided, that any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) such rights shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant be subject in all respects to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurredRemediation Plan.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Sources: Loan and Security Agreement (NewStar Financial, Inc.)
Permitted Actions. (a) Notwithstanding Section 3.1(a)In the event that after the date of this Agreement, and subject to Section 2.1the Company receives a bona fide, a Term Loan Creditor may (a) file a proof of claim or statement of interest, voteunsolicited Takeover Proposal, subject to Section 6.9the last paragraph of this SECTION 8.1(b), on a plan of reorganization the Company (including a vote to accept or reject a plan the Company's Board of partial or complete liquidationDirectors and the Company's Representatives, reorganizationemployees and agents, arrangement, composition, or extensionfor purposes of this SECTION 8.1) may engage in the applicable activities set forth in SECTIONS 8.1(a)(ii), 8.1(a)(iii), 8.1(a)(iv) and/or 8.1(a)(v) above (excluding taking the Takeover Proposal to the Company's stockholders - collectively, the "NEGOTIATION ACTIVITIES") as applicable and make only as specifically permitted herein, including furnishing information to such third party, all within the following framework:
(i) the Company's Board of Directors shall have a 15 calendar day period following receipt by the Company of any such bona fide, unsolicited Takeover Proposal (the "INITIAL CONSIDERATION PERIOD") in which to engage in the actions permitted in SECTIONS 8.1(a)(iv) and 8.1(a)(v) (other filingsthan taking the Takeover Proposal to the Company's stockholders for approval) in order to determine if such Takeover Proposal constitutes a Superior Proposal; PROVIDED, argumentsHOWEVER, and motions, that with respect to the Term Loan Obligations activities set forth in SECTION 8.1(a)(iv), the Company may perform such activities only to determine whether or not such Takeover Proposal is a Superior Proposal, and the Term Loan Priority Collateral shall not directly or indirectly participate in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL Obligations or the ABL Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of a Term Loan Obligation or a Lien securing the Term Loan Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding negotiations with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially Takeover Proposal with the Enforcement ActionPerson who has made such Takeover Proposal or such Person's representatives, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; employees or agents (ethe "OFFEROR") bid for or purchase ABL Priority Collateral at any publicduring the Initial Consideration Period, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge Company's Board of Directors determines that such Takeover Proposal constitutes a Superior Proposal, as set forth below;
(ii) if within the ABL Obligations (other than Initial Consideration Period as provided above, the Excess ABL Obligations) Company's Board of Directors, in good faith exercise of its fiduciary duties to the Company's stockholders, determines by resolution that such Takeover Proposal constitutes a Superior Proposal, then the Company's Board of Directors shall have occurred, a 15 calendar day period following the sole right day on which the Company's Board of Directors makes such determination (the Term Loan Creditors with respect "NEGOTIATION PERIOD") in which to engage in the ABL Priority Collateral is Negotiation Activities in order to hold negotiate and enter into a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies definitive agreement with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurredSuperior Proposal.
(biii) Notwithstanding Section 3.1(c)Upon determination that a Takeover Proposal constitutes a Superior Proposal as set forth above, then the Company shall so notify EarthLink pursuant to SECTION 8.1(c) hereof and subject to Section 2.1, an ABL Creditor EarthLink may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with discretion terminate this Agreement of Liens on and abandon the Term Loan Priority Collateral securing Merger at any time during the Term Loan Obligations or the Term Loan Creditors’ rights Negotiation Period, but only if done so prior to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated receiving written notification by the Term LenderCompany that it has formally terminated negotiations with such Offeror, to the extent PROVIDED, HOWEVER, that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive notwithstanding any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms provision of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right Company shall not be required to pay the Company Termination Fee (including, without limitation, any fees or expenses of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral EarthLink) pursuant to SECTION 8.3 and SECTION 7.1(c)(vii) upon any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ such termination and abandonment by EarthLink;
(directly or indirectlyiv) on real or personal property to secure an ABL Obligation or granting rights or remedies if the Company does not enter into a definitive agreement with respect to such Liens Superior Proposal within the Negotiation Period, the Company shall promptly reject and shall be deemed to have rejected such Superior Proposal and shall fully terminate and abandon its negotiations and discussions with such Offeror (a "TERMINATED SUPERIOR PROPOSAL)");
(v) if, after a Terminated Superior Proposal, the Company subsequently receives another bona fide, unsolicited Takeover Proposal from the same Offeror after the end of the Negotiation Period (a "SUBSEQUENT PROPOSAL"), and the Company's Board of Directors, in good faith exercise of its fiduciary duties to the Company's stockholders, determines by vote or resolution that such Subsequent Proposal is materially more favorable to the Company's stockholders from a financial point of view than such Offeror's prior Superior Proposal (a "SUBSEQUENT SUPERIOR PROPOSAL"), then the Company shall have a second 15 calendar day period following the day on which the Company's Board of Directors makes such determination (the “ABL Collateral Documents”"SUBSEQUENT NEGOTIATION PERIOD") in which to engage in the Negotiation Activities and enter into a definitive agreement with respect to such Subsequent Superior Proposal;
(vi) Upon such determination by the Company's Board of Directors that a Subsequent Proposal constitutes a Subsequent Superior Proposal, then the Company shall so notify EarthLink pursuant to SECTION 8.1(C) hereof and EarthLink may in its discretion terminate this Agreement and abandon the Merger at any time during the Subsequent Negotiation Period, but only if done so prior to receiving written notification by the Company that it has formally terminated negotiations with such Offeror, PROVIDED, HOWEVER, that the Company shall be required to pay the Company Termination Fee (including, without limitation, all fees or expenses of EarthLink) pursuant to SECTION 8.3 and SECTION 7.1(c)(viii) upon any such termination and abandonment by EarthLink; and
(vii) if the Company does not enter into a definitive agreement with respect to such Subsequent Superior Proposal within the Subsequent Negotiation Period, the Company and its Board of Directors shall promptly reject and shall be deemed to have rejected such Subsequent Superior Proposal and shall fully terminate and abandon its negotiations and discussions with such Offeror (a "TERMINATED SUBSEQUENT PROPOSAL"); PROVIDED, that the Company and its Representatives may engage in the activities set forth in SECTIONS 8.1(a)(ii), 8.1(a)(iii), 8.1(a)(iv) and/or 8.1(a)(v) as applicable and as specifically permitted in this SECTION 8.1(b) only if (i) the Board of Directors of the Company determines in its good faith judgment, after consultation with outside legal counsel of the Company, that such action or activity is reasonably necessary in order for the period and Board of Directors of the Company to comply with its fiduciary duties under applicable law, (II) the Company has received from such third party Offeror an executed confidentiality agreement with terms regarding confidentiality not less favorable to the extent granted therein Company than those contained in the Confidentiality Agreement with EarthLink, and to receive (III) the proceeds thereof, if any, after such Discharge Company has fully and completely complied with all other provisions of the Term Loan Obligations shall have occurredSECTION 8.1.
Appears in 1 contract
Sources: Merger Agreement (Earthlink Inc)
Permitted Actions. Notwithstanding the foregoing subsection (a) Notwithstanding Section 3.1(a), and subject to Section 2.1, a Term Loan Creditor any Non-Controlling Authorized Representative or Non-Controlling Secured Party may (ai) file a proof of claim if an Insolvency or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Obligations and the Term Loan Priority Collateral in any Insolvency Liquidation Proceeding has been commenced by or against any ObligorGrantor, file a claim or statement of interest with respect to the Pari Passu Obligations; (bii) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, that could be exercised by an unsecured creditors so long as such actions are action is not inconsistent with the terms and provisions of this Agreement; (iii) take any action (not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Pari Passu Collateral securing the ABL Obligations or the ABL Creditors’ rights of Pari Passu Collateral Agent, or any Controlling Secured Parties to exercise remedies or otherwise not take enforcement actions with respect to the Pari Passu Collateral) in accordance with this Agreementorder to create, prove, preserve and protect the validity, enforceability, perfection and priority of its Lien in and to the Pari Passu Collateral; (civ) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Pari Passu Secured Parties, including any claims secured by the Pari Passu Collateral, if any; (v) vote on any Plan of Reorganization and make any filings and motions and file any pleadings, in each case, that are, in each case, not in contravention of the provisions of this Agreement, with respect to the Pari Passu Obligations and the Pari Passu Collateral; (vi) make any election permitted under 11 USC § 1111(b) if classified in a Term Loan Obligation or a Lien securing class separate from the Term Loan Revolving Credit Agreement Obligations; (dvii) take any action to value the Pari Passu Collateral in any Insolvency or Liquidation Proceeding in an amount greater than the Revolving Credit Agreement Obligations plus any post-petition interest, fees, costs and other charges, whether or not allowed or allowable; (viii) in the case of a sale or other disposition of any Pari Passu Collateral free and clear of its Liens or other claims under Section 363 of the Bankruptcy Code, make a cash bid or credit bid for such property (provided such credit bid includes cash in an amount to cause the Discharge of Revolving Credit Agreement Obligations at the initial closing of such purchase) and (ix) join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the ABL Priority Pari Passu Collateral initiated by the ABL Agent, Pari Passu Collateral Agent to the extent that any such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations)expected, in each caseany material respect, at the closing of the sale based on to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by Pari Passu Collateral Agent (it being understood that all proceeds from such bid; (f) accelerate any Term Loan Obligations enforcement action or other proceeding shall be remitted to Pari Passu Collateral Agent in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Sources: Intercreditor Agreement (Nuverra Environmental Solutions, Inc.)
Permitted Actions. (a) Notwithstanding the foregoing, any Holder of Subordinated Indebtedness, or Subordinated Agent on behalf of the Holders of Subordinated Indebtedness, may:
i. except as set forth in Section 3.1(a2.2(e), and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, interest with respect to the Term Loan Obligations Subordinated Indebtedness not in violation of the terms and the Term Loan Priority Collateral in any Insolvency conditions of this Agreement, provided that a Proceeding has been commenced by or against any Obligor; (b) take action to create, perfect, preserve, Loan Party;
ii. file any necessary responsive or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL Obligations or the ABL Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary defensive pleadings in opposition to a claim any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims, for any of the Subordinated Indebtedness, if any, in each case in accordance with the terms of this Agreement;
iii. except as set forth in Sections 2.2(e) and 3.4, file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of any Loan Party arising under either a Term Proceeding or, except during a Standstill Period, applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement;
iv. take any action to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims within 10 days of the expiration of, and solely to the extent such suit or action is necessary to prevent the expiration of, any applicable statute of limitations or similar permanent restriction on claims, or to assert a compulsory cross-claim or counterclaim against any Loan Obligation Party (provided that, in any event, no payment on the Subordinated Indebtedness or a Lien securing monetary damages are received or retain in connection with this subsection 2.2(d)(iv);
v. vote on any plan of reorganization in accordance with the Term Loan Obligations; (d) join (but not exercise terms of this Agreement;
vi. file any control over) a judicial foreclosure or Lien enforcement proceeding proof of claim, make other filings and make any arguments and motions with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent Subordinated Indebtedness that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations)are, in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement; or
vii. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by make a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect cash bid on all or any portion of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by foreclosure proceeding or against action; provided, however, that any Obligor; (b) take action Holder of Subordinated Indebtedness’s right to create, perfect, preserve, or protect (but not enforce) its Lien make a cash bid on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, all or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge portion of the Term Loan Obligations, Collateral in each case, at the closing any foreclosure proceeding or action is expressly contingent upon Payment-in-Full of the sale based on Senior Indebtedness by such bid; (f) accelerate any ABL Obligations in accordance with the provisions Holder of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered Subordinated Indebtedness prior to each such payment), and (B) the receipt thereof is not the direct or indirect result Holder of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurredSubordinated Indebtedness’s cash bid offer.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)
Permitted Actions. (a) Notwithstanding Section 3.1(a), and subject to Section 2.1, a Term Loan Second Lien Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, vote on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Term Loan Second Lien Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL First Lien Obligations or the ABL First Lien Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of a Term Loan Second Lien Obligation or a Lien securing the Term Loan ObligationsSecond Lien Obligation; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the ABL Priority Collateral initiated by the ABL First Lien Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan the Second Lien Creditor may not receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL First Lien Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Second Lien Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL First Lien Obligations (other than the Excess ABL Obligations) and are applied to cause such the Discharge of the ABL Obligations (other than the Excess ABL First Lien Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Second Lien Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws)Second Lien Documents; and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), ) in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments principal, interest and other amounts owed in respect of the Term Loan Second Lien Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan CreditorsAction, and (2) unless and until the Discharge of the ABL First Lien Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors Second Lien Creditor with respect to the ABL Priority Collateral is to hold a Lien lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Second Lien Collateral Documents”) Documents for the period and to the extent granted therein and to receive a share of the proceeds Proceeds thereof, if any, after such the Discharge of the ABL First Lien Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. Notwithstanding the foregoing provisions of this Section 3, each Agent, on behalf of itself and the applicable Secured Parties, may:
(a) Notwithstanding Section 3.1(a), and subject to Section 2.1, a Term Loan Creditor may (ai) file a claim, proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, interest with respect to the Term Loan applicable Obligations of such Agent (on behalf of itself and the Term Loan Priority Collateral applicable Secured Parties) in any Insolvency Proceeding commenced by or against with respect to any Obligor; Loan Party;
(bii) take any action not in contravention or violation of the Lien priorities set forth in Section 2 in order to create, perfect, preserve, preserve or protect the applicable Lien on the Common Collateral or the International First Lien Collateral, as applicable;
(iii) join (but not enforcecontrol) its any foreclosure or judicial lien enforcement proceeding with respect to the U.S. Revolver First Lien on the ABL Priority CollateralCollateral initiated by U.S. Revolver Agent, so long as such actions are action would not adverse and would not reasonably be expected to delay or interfere in any respect with the exercise by U.S. Revolver Agent of its rights with respect to the priority status in accordance with this Agreement of Liens on the ABL Priority Collateral securing the ABL Obligations or the ABL Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; U.S. Revolver First Lien Collateral;
(civ) file any necessary responsive or defensive pleadings (including any compulsory counterclaims) in opposition to a claim any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of a Term Loan Obligation or a Lien securing the Term Loan Obligations; (d) join (but not exercise claims of the applicable Secured Party, including any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the ABL Priority Collateral initiated claims secured by the ABL AgentCommon Collateral or the International First Lien Collateral, to the extent that such action could not reasonably be expected to interfere materially as applicable, in each case in accordance with the Enforcement Action, but no Term Loan Creditor may receive terms of this Agreement;
(v) take any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect action necessary to prevent the running of any Term applicable statute of limitations or similar restrictions on claims;
(vi) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of any Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations)Party arising in any Insolvency Proceeding or under any applicable non-bankruptcy law or regulation, in each case, at not prohibited by the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance express terms with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, ;
(1vii) no provision hereof shall be construed take any action to prohibit seek and obtain specific performance or injunctive relief to compel any Loan Party to comply with (or not violate or breach) any obligation under the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of U.S. Loan Documents or the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term International Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateralas applicable, so long as such actions are action is not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to accompanied by a claim objecting for monetary damages other than reimbursement for any expenditures made to satisfy such obligations or otherwise seeking the disallowance in connection with such litigation;
(viii) vote on any plan of an ABL Obligation reorganization or a Lien securing the ABL Obligations; (d) join (but not exercise make any control over) a judicial foreclosure other filings or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent motions that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligationsare, in each case, at not prohibited by the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other express terms of this Agreement. Except as expressly provided for herein, ;
(1ix) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect accelerate any portion of the ABL applicable Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate Secured Party; and
(as defined in the ABL Documentsx) prepared on a pro forma basis engage consultants, valuation firms and delivered prior to each such payment)investment bankers, and (B) perform or engage third parties to perform audits, examinations and appraisals of the receipt thereof is not Common Collateral or the direct International First Lien Collateral, as applicable, for the sole purpose of valuing such Common Collateral or indirect result of any Enforcement Action by ABL Creditorsthe International First Lien Collateral, as applicable, and (2) unless and until not for the Discharge purpose of marketing or conducting a sale or disposition of the Term Loan Obligations shall have occurredCollateral such Common Collateral or the International First Lien Collateral, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurredas applicable.
Appears in 1 contract
Permitted Actions. (ai) Notwithstanding Section 3.1(a), Without in any way limiting the generality of the foregoing paragraph (but subject to any rights of Grantors under the ABL Loan Documents and subject to Section 2.1, a Term Loan Creditor may (a) file a proof the provisions of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extensionthis Agreement), ABL Claimholders, ABL Agent and make other filingsany of them may, arguments, at any time and motions, with respect from time to the Term Loan Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status time in accordance with the ABL Loan Documents and/or applicable law, without the consent of, or notice to, Term Agent or any Term Loan Claimholders, without incurring any liabilities to Term Agent or any Term Loan Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of Liens on subrogation or other right or remedy of Term Agent or any Term Loan Claimholders is affected, impaired, or extinguished thereby) do any one or more of the ABL Priority Collateral securing following without the prior written consent of Term Agent:
(1) Subject to Section 5.3(a), change the manner, place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase, or alter, the terms of any of the ABL Obligations or any Lien on any ABL Collateral or guarantee thereof or any liability of any Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the ABL Creditors’ rights Obligations, without any restriction as to exercise remedies the tenor or terms of any such increase or extension) or otherwise not amend, renew, exchange, extend, modify, or supplement in accordance with this Agreement; any manner any Liens held by ABL Agent or any ABL Claimholders, the ABL Obligations, or any of the ABL Loan Documents;;
(c2) file necessary pleadings in opposition to a claim objecting to sell, exchange, release, surrender, realize upon, enforce or otherwise seeking the disallowance deal with in any manner and in any order any part of a Term Loan Obligation or a Lien securing the Term Loan Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the ABL Priority Collateral initiated by the or any liability of any Grantor to ABL Claimholders or ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive or any Proceeds thereof unless expressly permitted herein; liability incurred directly or indirectly in respect thereof;
(e3) bid for settle or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by compromise any ABL Creditor, Obligation or any sale other liability of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” any Grantor or any security therefor or any liability incurred directly or indirectly in respect of thereof and apply any Term Loan Obligations unless sums by whomsoever paid and however realized to any liability (including the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against any Grantor or any other person, elect any remedy and are applied otherwise deal freely with any Grantor or any ABL Collateral and any security and any guarantor or any liability of any ABL Grantor to cause such Discharge ABL Claimholders or any liability incurred directly or indirectly in respect thereof.
(ii) Without in any way limiting the generality of the ABL Obligations foregoing paragraph (other than the Excess ABL Obligations), in each case, at the closing but subject to any rights of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice Grantors under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding subject to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms provisions of this Agreement. Except as expressly , Term Loan Claimholders, Term Agent and any of them may, at any time and from time to time in accordance with the Term Loan Documents and/or applicable law, without the consent of, or notice to, ABL Agent or any ABL Claimholders, without incurring any liabilities to ABL Agent or any ABL Claimholders and without impairing or releasing the Lien priorities and other benefits provided for hereinin this Agreement (even if any right of subrogation or other right or remedy of ABL Agent or any ABL Claimholders is affected, impaired, or extinguished thereby) do any one or more of the following without the prior written consent of ABL Agent:
(1) no provision hereof shall be construed Subject to prohibit Section 5.3(b), change the manner, place, or terms of payment by a Borrower or change or extend the time of interestpayment of, regularly scheduled principal payments and other amounts owed in respect or amend, renew, exchange, increase, or alter, the terms of any of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge or guarantee thereof or any liability of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan CreditorGrantor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” liability incurred directly or indirectly in respect of thereof (including any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge increase in or extension of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate without any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding restriction as to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other tenor or terms of this Agreement. Except as expressly provided for hereinany such increase or extension) or otherwise amend, (1) no provision hereof shall be construed to prohibit renew, exchange, extend, modify, or supplement in any manner any Liens held by Term Agent or any Term Loan Claimholders, the payment by a Borrower of interestTerm Loan Obligations, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurredDocuments;
(2) sell, the sole right of the ABL Creditors exchange, release, surrender, realize upon, enforce or otherwise deal with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to in any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period manner and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge in any order any part of the Term Loan Obligations shall have occurredCollateral or any liability of any Grantor to Term Loan Claimholders or ABL Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any Term Loan Obligation or any other liability of any Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Term Loan Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against any Grantor or any other person, elect any remedy and otherwise deal freely with any Grantor or any Term Loan Collateral and any security and any guarantor or any liability of any Grantor to Term Loan Claimholders or any liability incurred directly or indirectly in respect thereof.
Appears in 1 contract
Sources: Intercreditor Agreement (Conns Inc)
Permitted Actions. (ai) Notwithstanding Section 3.1(a), Without in any way limiting the generality of the foregoing paragraph (but subject to any rights of Obligors under the ABL Loan Documents and subject to Section 2.1, a Term Loan Creditor may (a) file a proof the provisions of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extensionthis Agreement), ABL Claimholders, ABL Agent and make other filingsany of them may, arguments, at any time and motions, with respect from time to the Term Loan Obligations and the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status time in accordance with the ABL Loan Documents and/or applicable law, without the consent of, or notice to, Term Agent or any Term Loan Claimholders, without incurring any liabilities to Term Agent or any Term Loan Claimholders and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of Liens on subrogation or other right or remedy of Term Agent or any Term Loan Claimholders is affected, impaired, or extinguished thereby) do any one or more of the ABL Priority Collateral securing following without the prior written consent of Term Agent:
(1) Subject to Sections 4.1 and 5.3(a), change the manner, place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase, or alter, the terms of any of the ABL Obligations or any Lien on any Collateral or guarantee thereof or any liability of any Obligor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the ABL Creditors’ rights Obligations, without any restriction as to exercise remedies the tenor or terms of any such increase or extension) or otherwise not amend, renew, exchange, extend, modify, or supplement in accordance with this Agreement; any manner any Liens held by ABL Agent or any ABL Claimholders, the ABL Obligations, or any of the ABL Loan Documents;;
(c2) file necessary pleadings in opposition to a claim objecting to sell, exchange, release, surrender, realize upon, enforce or otherwise seeking deal with in any manner and in any order any part of the disallowance Collateral or any liability of a Term Loan Obligation any Obligor to ABL Claimholders or a Lien securing the Term Loan Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive or any Proceeds thereof unless expressly permitted herein; liability incurred directly or indirectly in respect thereof;
(e3) bid for settle or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by compromise any ABL Creditor, Obligation or any sale other liability of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” any Obligor or any security therefor or any liability incurred directly or indirectly in respect of thereof and apply any Term Loan Obligations unless sums by whomsoever paid and however realized to any liability (including the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against any Obligor or any other person, elect any remedy and are applied otherwise deal freely with any Obligor or any Collateral and any security and any guarantor or any liability of any ABL Obligor to cause such Discharge ABL Claimholders or any liability incurred directly or indirectly in respect thereof.
(ii) Without in any way limiting the generality of the ABL Obligations foregoing paragraph (other than the Excess ABL Obligations), in each case, at the closing but subject to any rights of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice Obligors under the Term Loan Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding subject to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms provisions of this Agreement. Except as expressly , Term Loan Claimholders, Term Agent and any of them may, at any time and from time to time in accordance with the Term Loan Documents and/or applicable law, without the consent of, or notice to, ABL Agent or any ABL Claimholders, without incurring any liabilities to ABL Agent or any ABL Claimholders and without impairing or releasing the Lien priorities and other benefits provided for hereinin this Agreement (even if any right of subrogation or other right or remedy of ABL Agent or any ABL Claimholders is affected, impaired, or extinguished thereby) do any one or more of the following without the prior written consent of ABL Agent:
(1) no provision hereof shall be construed Subject to prohibit Sections 4.1 and 5.3(b), change the manner, place, or terms of payment by a Borrower or change or extend the time of interestpayment of, regularly scheduled principal payments and other amounts owed in respect or amend, renew, exchange, increase, or alter, the terms of any of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared or any Lien on a pro forma basis and delivered prior to each such payment), and (B) the receipt any Collateral or guarantee thereof is not the direct or indirect result any liability of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” liability incurred directly or indirectly in respect of thereof (including any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge increase in or extension of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate without any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding restriction as to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other tenor or terms of this Agreement. Except as expressly provided for hereinany such increase or extension) or otherwise amend, (1) no provision hereof shall be construed to prohibit renew, exchange, extend, modify, or supplement in any manner any Liens held by Term Agent or any Term Loan Claimholders, the payment by a Borrower of interestTerm Loan Obligations, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurredDocuments;
(2) sell, the sole right exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the Collateral or any liability of any Obligor to Term Loan Claimholders or ABL Creditors with Agent, or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any Term Loan Obligation or any other liability of any Obligor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Term Loan Priority Collateral is to hold a Lien on the Obligations) in any manner or order; and
(4) exercise or delay in or refrain from exercising any right or remedy against any Obligor or any other person, elect any remedy and otherwise deal freely with any Obligor or any Term Loan Priority Collateral pursuant and any security and any guarantor or any liability of any Obligor to Term Loan Claimholders or any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (liability incurred directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with indirectly in respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, each of Notes Agent and ABL Agent may:
(a) Notwithstanding Section 3.1(a)if an Insolvency Proceeding has been commenced by or against any Grantor, and subject to Section 2.1, a Term Loan Creditor may (a) file a proof of claim or statement of interest, vote, subject interest with respect to Section 6.9, on a plan of reorganization (including a vote to accept its Collateral or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, otherwise with respect to the Term Loan Notes Obligations and or the Term Loan Priority Collateral in ABL Obligations, as the case may be, or otherwise file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of such Grantor arising under any Insolvency Proceeding commenced by or against any Obligor; applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement or applicable law (including the Bankruptcy Laws);
(b) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Collateral securing of the ABL Obligations other, or the ABL Creditors’ rights of the other Agent or any Claimholders to exercise remedies Exercise any Secured Creditor Remedies) in order to create or otherwise not perfect its Lien in accordance with this Agreement; and to the Collateral;
(c) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance or subordination of a Term Loan Obligation its claims or a Lien securing the Term Loan Obligations; claims of its Claimholders, or the avoidance of its Liens;
(d) object to any proposed acceptance of (i) in the case of Notes Agent, ABL Priority Collateral by an ABL Claimholder pursuant to Section 9-620 of the UCC and (ii) in the case of ABL Agent, Notes Priority Collateral by a Notes Claimholder pursuant to Section 9-620 of the UCC;
(e) make any arguments and motions that are, in each case, in accordance with the terms of this Agreement;
(f) vote on any plan of reorganization in accordance with the terms of this Agreement;
(g) join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the ABL Priority Collateral of the other Agent initiated by the ABL Agent, such other Agent to the extent that any such action could not reasonably be expected expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere materially with the Enforcement ActionExercise of Secured Creditor Remedies by such other Agent (it being understood that, but no Term Loan Creditor may (i) with respect to ABL Priority Collateral, neither Notes Agent nor any other Notes Claimholder shall be entitled to receive any Proceeds proceeds thereof unless otherwise expressly permitted herein and (ii) with respect to Notes Priority Collateral, neither ABL Agent nor any other ABL Claimholder shall be entitled to receive any proceeds thereof unless otherwise expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions of the Term Loan Documents (except for acceleration which occurs automatically and without notice under the Term Loan Documents or by operation of Bankruptcy Laws); and and
(gh) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, take any action described in the case of each of clauses (ai) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1viii) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event definition of Default shall have occurred and be continuing (both before and after giving effect to the payment Exercise of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurredSecured Creditor Remedies.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.
Appears in 1 contract
Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, any Claimholder may: (ai) Notwithstanding Section 3.1(a)if an Insolvency Proceeding has been commenced by or against any Grantor, and subject to Section 2.1, a Term Loan Creditor may (a) file a claim, proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, interest with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term Claimholder, the Term Loan Obligations Debt, and in each case, subject in all respects to this Agreement, the Term Loan Priority Collateral in any Insolvency Proceeding commenced by or against any Obligorsecuring such Debt; (bii) take any action to create, perfect, preserve, or protect (but not enforce) its Lien on the ABL Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of the Liens on the ABL Priority Collateral securing held by the ABL Obligations Priority Agent with respect thereto, or the ABL Creditors’ rights of the Priority Agent or any other Priority Claimholder to exercise remedies undertake Enforcement Actions with respect thereto) in order to create or otherwise not perfect its Lien in accordance with this Agreementand to the Collateral; (ciii) file any necessary responsive or defensive pleadings in opposition to a claim any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of (i) in the case of a claim of an ABL Claimholder in respect of the ABL Debt, the ABL Claimholders, or (ii) in the case of a claim of a Term Loan Obligation or a Lien securing Claimholder in respect of the Term Loan ObligationsDebt, the Term Claimholders, in each case including any claims secured by the Collateral, if any, in each case, in accordance with the express provisions of this Agreement; (div) vote on any plan of reorganization and make any filings and motions that are, in each case, not in contravention of the express provisions of this Agreement, with respect to (A) in the case of an ABL Claimholder, the ABL Debt, and (B) in the case of a Term Claimholder, the Term Debt, and (in each case) the Collateral; (v) join (but not exercise any control overwith respect to) a any judicial foreclosure proceeding or Lien other judicial lien enforcement proceeding with respect to the Priority Collateral of the Priority Agent initiated by such Priority Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an Enforcement Action by such Priority Agent (it being understood that neither the Junior Agent nor any Junior Claimholder shall be entitled to receive any proceeds from the Priority Collateral unless otherwise expressly permitted herein); (vi) the Term Agent or any Term Claimholder may exercise any of its rights or remedies with respect to the ABL Priority Collateral initiated by the ABL Agent, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no Term Loan Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase ABL Priority Collateral at any public, private, or judicial foreclosure upon such ABL Priority Collateral initiated by any ABL Creditor, or any sale of ABL Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any Term Loan Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of ABL Obligations (other than the Excess ABL Obligations) and are applied to cause such Discharge of the ABL Obligations (other than the Excess ABL Obligations), in each case, at the closing of the sale based on such bid; (f) accelerate any Term Loan Obligations in accordance with the provisions Term Documents after the termination of the Term Loan Documents (except for acceleration which occurs automatically and without notice under ABL Priority Standstill Period to the Term Loan Documents or extent permitted by operation of Bankruptcy Laws)Section 3.1 above; and (g) seek adequate protection during an Insolvency Proceeding to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the Term Loan Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the Term Loan Documents) prepared on a pro forma basis and delivered prior to each such payment), and (Bvii) the receipt thereof is not the direct ABL Agent or indirect result any ABL Claimholder may exercise any of any Enforcement Action by Term Loan Creditors, and (2) unless and until the Discharge of the ABL Obligations (other than the Excess ABL Obligations) shall have occurred, the sole right of the Term Loan Creditors with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure a Term Loan Obligation or granting its rights or remedies with respect to such Liens (the “Term Loan Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the ABL Obligations shall have occurred.
(b) Notwithstanding Section 3.1(c), and subject to Section 2.1, an ABL Creditor may (a) file a proof of claim or statement of interest, vote, subject to Section 6.9, on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the ABL Obligations and the ABL Priority Collateral in any Insolvency Proceeding commenced by or against any Obligor; (b) take action to create, perfect, preserve, or protect (but not enforce) its Lien on the Term Loan Priority Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Term Loan Priority Collateral securing the Term Loan Obligations or the Term Loan Creditors’ rights to exercise remedies or otherwise not in accordance with this Agreement; (c) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of an ABL Obligation or a Lien securing the ABL Obligations; (d) join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Term Loan Priority Collateral initiated by the Term Lender, to the extent that such action could not reasonably be expected to interfere materially with the Enforcement Action, but no ABL Creditor may receive any Proceeds thereof unless expressly permitted herein; (e) bid for or purchase Term Loan Priority Collateral at any public, private, or judicial foreclosure upon such Term Loan Priority Collateral initiated by any Term Loan Creditor, or any sale of Term Loan Priority Collateral during an Insolvency Proceeding; provided that such bid may not include a “credit bid” in respect of any ABL Obligations unless the net cash Proceeds of such bid are otherwise sufficient to cause the Discharge of Term Loan Obligations and are applied to cause such Discharge of the Term Loan Obligations, in each case, at the closing of the sale based on such bid; (f) accelerate any ABL Obligations in accordance with the provisions ABL Documents after the termination of the ABL Documents (except for acceleration which occurs automatically and without notice under the ABL Documents or by operation of Bankruptcy Laws); and (g) seek adequate protection during an Insolvency Proceeding Term Priority Standstill Period to the extent expressly permitted by Section 6, in the case of each of clauses (a) through (g), in a manner not inconsistent with the other terms of this Agreement3.2 above. Except as expressly provided for herein, (1) no provision hereof shall be construed to prohibit the payment by a Borrower of interest, regularly scheduled principal payments and other amounts owed in respect of the ABL Obligations so long as (A) no Event of Default shall have occurred and be continuing (both before and after giving effect to the payment of such interest and/or principal as demonstrated by a Compliance Certificate (as defined in the ABL Documents) prepared on a pro forma basis and delivered prior to each such payment), and (B) the receipt thereof is not the direct or indirect result of any Enforcement Action by ABL Creditors, and (2) unless and until the Discharge of the Term Loan Obligations shall have occurred, the sole right of the ABL Creditors with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to any documents or instruments granting or purporting to g▇▇▇▇ ▇ ▇▇▇▇ (directly or indirectly) on real or personal property to secure an ABL Obligation or granting rights or remedies with respect to such Liens (the “ABL Collateral Documents”) for the period and to the extent granted therein and to receive the proceeds thereof, if any, after such Discharge of the Term Loan Obligations shall have occurred.3.5
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